It’s Berkeley Vs. Bentonville as Lawyers Take On Wal-Mart

Times Staff Writer

The conference room in Brad Seligman’s Berkeley law office is a forlorn place.

Its two windows look out onto walls. The table is scratched, the carpet dull. An air duct stretching across the ceiling adds to the feeling of claustrophobia.

For three years, Seligman has been suing Wal-Mart Stores Inc., accusing it of discriminating against female employees. When the time came for the first big meeting with the company’s well-heeled lawyers, he insisted it be done in this room.

“I wanted them to see we weren’t about money, that this case wasn’t just about money,” Seligman says. “We brought it because Wal-Mart needs to change.”


Such grand words might once have been easily dismissed as quixotic. But last week Seligman rocked the world’s largest company when a federal judge in San Francisco certified his lawsuit as a class-action case.

That instantly broadened it from six women to 1.6 million -- the biggest workplace discrimination case ever. Wal-Mart shares shed $10 billion in market value.

If any of those visiting lawyers had looked into Seligman’s own office, they would have seen more evidence that money wasn’t his only motivation. Framed on the wall is a poster from the 1969 struggle over People’s Park, a literal battleground between University of California administrators and student radicals.

“Strike against the violence of the state,” the poster urges.

Formed in the crucible of the late ‘60s, the 52-year-old Seligman has retained many of the ideals of that convulsive era. “It’s still possible to find a fulcrum and make a change,” he says. “Although it’s much more complicated than it used to be.”

Wal-Mart has declined to comment on the class-certification ruling except to say it has nothing to do with the case’s merits and that the company would appeal.

In the past, the Bentonville, Ark.-based company has said that any discriminatory acts at its stores were the result of individual managers not following established policies -- not a systemwide problem. Paul Grossman, the Los Angeles lawyer who is Wal-Mart’s outside counsel, declined to be interviewed.


Class-action suits are the long-distance marathons of the legal world. The Wal-Mart case has already cost Seligman, his colleague Jocelyn Larkin and the 16 participating lawyers at six other firms nearly $2 million in out-of-pocket expenses.

If it isn’t settled, a trial might not take place until 2008 or later. (Seligman’s lengthiest class action, against State Farm Insurance, took 14 years.) If the plaintiffs lose, the lawyers will never be reimbursed for expenses, much less paid for their time.

All of these are good reasons for most lawyers to avoid class actions. But Seligman practically revels in them. In 22 years, he’s filed 45 class actions. One did not get certified, one he lost at trial and one he withdrew. The 42 others were either settled or, in five cases, won at trial.

“If you really want to change a company, no other legal tool comes close,” he says.

Individuals who sue a company often find the focus is on themselves. Were they good employees? Will the company find dirt on them? Are they believable during cross-examination?

“Class litigation, on the other hand, is focused just as relentlessly on the defendant,” Seligman says. “That’s more my personality. It’s fun. It allows me to frame the issues and lead the charge.”

The origin of the Wal-Mart case goes back a decade. That’s when two New Mexico lawyers, Stephen Tinkler and Merit Bennett, took on a sexual harassment complaint involving two women at a local Sam’s Club, a Wal-Mart subsidiary.


In 1997, the partners won a $2-million verdict. That produced a flood of new harassment suits against Wal-Mart, but prevailing never became easy.

“Wal-Mart had unlimited resources. It would fight to the hilt,” Bennett says. “Maybe we were naive.”

Still, after years of litigation, the lawyers felt they had amassed a pile of useful evidence about the retailer’s employment practices that suggested something deeper and more pervasive than harassment.

Discrimination, however, is much harder to prove in court. “Harassment is blatant,” Bennett explains. “There are a lot of witnesses. It’s out in the open. Discrimination is under the covers, the secret of the company.”

The partners began looking in the late 1990s for a Wal-Mart employee who would make a good plaintiff in a class-action employment suit.

“We knew we could continue to do individual cases, and we did, and we’d make money on them,” Tinkler recalls. “But we wanted to change the company. Our $2-million verdict had no effect on them.”


Several women who fit the bill didn’t want to become part of something that could focus attention on them for a decade. It took two years to find Stephanie Odle, who alleged that she was fired from a Sam’s Club in Lubbock, Texas, to make way for a male manager who wanted to transfer to her store. (Odle eventually had to be dropped from the case because of a court ruling restricting it to plaintiffs in California, where the suit was filed.)

Even with Odle on board, Tinkler and Merritt realized they needed lots of help. They asked around and were told the best person for the job was a class-action attorney in Berkeley, a city whose inhabitants would probably set it on fire before they agreed to let a Wal-Mart come in.

Seligman had never been in a Wal-Mart when Tinkler and Merritt called in early 2000. “I hate going to big-box stores,” he says. “Those large open rooms and fluorescent lights give me a headache.”

In fact, he barely knew what the company was. Still, he was intrigued enough by what the New Mexicans said to have a brief conversation with Steve Stemerman, a San Francisco lawyer who frequently represents employees.

“Wal-Mart,” Seligman said.

“Evil Empire,” Stemerman answered.

Seligman, Stemerman, Tinkler and Merritt met in San Francisco for lunch. By the end, two things were clear: They’d move forward, and Seligman would be in charge.

Tinkler and Merritt hadn’t expected this last part. “Lawyers have big egos,” Tinkler says. “I don’t, of course -- I’m a Buddhist -- but any trial lawyer likes to try his own cases. I’m typically a lead counsel. But it just seemed natural that it be Brad.”


Seligman seems to have been preparing all his life for this case, although for a long time that wasn’t obvious.

He was an upper-middle-class Hollywood kid, the second child of Muriel and Selig Seligman, an attorney at the Nuremberg war crimes trials who went on to become an executive at ABC. In the mid-’60s, the senior Seligman was executive producer of “Combat,” a series about World War II.

Brad excelled as a debater. In his senior year in high school he went to the national debating championships in Washington and won. He called his father, who congratulated him. Then the elder Seligman went to bed, had a heart attack and died.

Seligman, who was 51, had worked for ABC for 19 years -- one year short of becoming vested in the retirement plan. He had done a lot for the network, but the benefits for his widow and five children were minimal.

“ABC’s response was ‘Goodbye and good luck,’ ” remembers the son. “It didn’t endear me to large corporations.”

Seligman went to college at UC Santa Cruz and other Northern California schools, where he got caught up in the ferment and experimentation of the ‘60s. At the end of 1974, he was living in a cabin on the Russian River in Sonoma County and reading, appropriately enough, Russian literature when he realized he had debts of $130 and assets of $80.


He decided to give the law a try, just like his father had always wanted.

In 1993, Seligman started the Impact Fund, which provides assistance for complex public interest litigation. (One recent recipient: the anti-Wal-Mart forces in Inglewood, which earlier this year successfully quashed the retailer’s efforts to build a store there.) Eleven people now work at the fund’s office, which is run by Seligman’s sister Lucy.

Before Wal-Mart, his most significant case was a sex-discrimination suit against Lucky Stores, now part of the Albertson’s supermarket chain. Lucky paid $107 million to settle in 1992. But the Wal-Mart case is at least several orders of magnitude greater.

The bigger the class, “the heavier burden we have to convince a judge there is a common problem across the system,” Seligman says. “Defendants always argue, as they did in this case, that each store is different.”

Trying to prove they weren’t was the role of Marc Bendick, an economist and consultant in Washington. Using Equal Employment Opportunity Commission data, Bendick put together a portrait of the top 20 discount retailers’ workforces.

Women, he found, dominate retail -- and not just at the cash register; Kmart, JC Penney, Sears and other companies are run by management teams that are, on average, 56% female.

Then the lawyers took a close look at Wal-Mart’s recent EEOC reports. No matter which way Bendick sliced it, Wal-Mart was different: Only 34% of its managers were women.


“What makes lawyers happy is when they find the very dramatic epiphany moments they know are going to play well to a judge or jury,” Bendick says. “What makes me happy is when I find no surprises, because whatever data I look at is telling me the same story over and over.”

As Seligman began assembling a team in the spring and summer of 2000, he knew he needed at least one firm with deep pockets. But most of those he sounded out weren’t interested. The case was just too big, the chance of being turned back by the court too great. Most judges, after all, frown on massive class actions because they’re too unwieldy to manage.

“We were betting the bank,” Seligman says.

There was another stumbling block too. When a big firm comes in, it usually takes control. Seligman was unwilling to surrender that.

Eventually, a recruit was found: Cohen, Milstein, Hausfeld & Toll, a well-capitalized Washington firm specializing in class actions.

“We had a long talk,” says senior partner Joe Sellers. “It wasn’t like he just said, ‘Wal-Mart’ and I said, ‘You bet.’ ”

In the end, though, the team proved to be quite collegial -- so much so that the esprit de corps disappointed a would-be book writer, who had hoped to provide an inside account of the case in the style of Jonathan Harr’s “A Civil Action.”


The bestseller vividly describes how a small Massachusetts law firm went up against a corporate giant for environmental violations and was first overwhelmed and then destroyed. The hero, portrayed by John Travolta in the movie, lost everything, even his natty suits.

“None of us are bankrupt, none are lunatics. We don’t even dress well,” Seligman told the writer, who dropped the idea.

Not that there haven’t been “Civil Action” echoes. Chief among them, perhaps, has been the relentless, almost smothering flow of documents. “A lot of trees, a lot of forests, have been defoliated,” Stemerman says.

To date, 1.5 million documents have been produced. Luckily, many of them can be stored in cyberspace. The case, in fact, probably wouldn’t exist without the Internet. An internal Web site common to all the firms means documents don’t have to be sent by messenger or faxed, and that expensive meetings can be kept to a minimum.

“I think I’ve seen Brad in the flesh only two or three times,” says Debra Gardner of the Public Justice Center, a Baltimore nonprofit that is a member of the legal team.

The lawyers have participated in about 200 depositions, about 75 with Wal-Mart employees who offered to be witnesses. These women would be deposed by the company, which would try to prove they didn’t have a case for discrimination.


“Many of the depositions were quite contentious,” says Debra Smith of the San Francisco group Equal Rights Advocates, another member of the legal team. “The Wal-Mart attorneys would say, ‘Do you know if there were men who were paid more than you?’ This put the employees in a dilemma, because they weren’t supposed to talk about wages at work.”

The other 125 depositions were done with Wal-Mart executives, including the vice president of human resources, Coleman Peterson.

Quoting from Peterson’s own memos, Sellers asked the executive if it was true that Wal-Mart was lagging behind other retailers in the promotion of women into management. Peterson replied he had been exaggerating.

The lawyer quoted from memo after memo and got the same response: Peterson said he had been exaggerating. “He was under oath telling me he was lying to the CEO of the company and had been doing so for eight or nine years,” Sellers says.

The next step for the plaintiffs is to send letters to the 1 million women who are members of the class action but no longer work at Wal-Mart, informing them of the suit. Their addresses will come from Wal-Mart. The $500,000 for the mailing will come from somewhere else, although it’s unclear where.

“We’ll have to raise it,” Seligman says. “We’re working on it.”


Times staff writer Lisa Girion contributed to this report.