Two veteran litigators to face off in Wal-Mart case

NEW YORK, Dec 10 (Reuters Legal) – Lawyers for women
seeking to bring the largest sex-discrimination class-action
lawsuit in U.S. history have settled on who will argue the case
against Wal-Mart Stores (WMT.N: ) before the Supreme Court.

It will be Joseph M. Sellers, a partner at Washington D.C.,
plaintiffs’ class-action law firm Cohen Milstein Sellers &
Toll. Sellers, 57, a veteran civil-rights litigator, has been
co-lead counsel in the case since 2000.

Other attorneys on the plaintiffs’ side said it was clear
from the start that either Sellers or lead counsel Brad
Seligman, 59, would make the oral argument before the Supreme
Court.

Lawyers at three other plaintiffs’ law firms and two other
non-profits are also representing would-be members of a class
of women who claim Wal-Mart paid them less than men and offered
fewer opportunities for promotions.

Arguing for Wal-Mart will be high-profile litigator
Theodore J. Boutrous, Jr., 50, a partner at Gibson, Dunn &
Crutcher in Los Angeles.

Boutrous has been the company’s lead counsel on the case
since it reached the U.S. Court of Appeals for the 9th Circuit
in 2004. Wal-Mart is seeking to overturn the appellate court’s
decision to grant class certification to the women, a group
that could number as many as 1.5 million.

When many lawyers are representing one side, as is the case
with the potential class here, competition for the prestigious
role of arguing before the high court can be intense.

But the group chose Sellers by consensus, plaintiffs’
attorneys said.

On Dec. 6, shortly after the Supreme Court announced it had
granted certiorari, Sellers and Seligman organized an afternoon
conference call with other plaintiffs’ attorneys to discuss
strategy.

Seligman, a lawyer at the Impact Fund, a Washington,
D.C.-based nonprofit, says he nominated Sellers to do the oral
argument, and others on the call supported the choice.

Another lawyer involved in the discussions said that it was
generally understood that it was Sellers’ turn since Seligman
had twice argued the case before the 9th U.S. Circuit Court of
Appeals-first before a three-judge panel, then before the court
en banc.

The decision was finalized two days later, after Sellers
and Seligman got the approval of their clients.

The Wal-Mart case, which is expected to be heard in March,
would be Sellers’ second oral argument before the Supreme
Court.

In 2000, he represented a woman who had challenged the
terms of her mobile-home financing agreement. The Court in that
case, Green Tree Financial Corp. v. Randolph, ruled in favor of
Sellers’ client on one issue and against him on another.

Sellers has represented plaintiffs in workplace
discrimination suits individually and through class actions.

In another sex-discrimination case against a major company,
Beck v. Boeing Co (BA.N: ), he represented a class of more than
28,000 female employees at Boeing facilities in Washington
state.

Boeing settled in 2004, agreeing to pay plaintiffs up to
$72.5 million.

Prior to joining Cohen Milstein in 1997, Sellers was head
of the Employment Discrimination Project of the Washington
Lawyers’ Committee for Civil Rights and Urban Affairs for more
than 15 years.

He graduated from Case Western Reserve School of Law.

Sellers said he started preparing for the oral argument the
day he was chosen.

“It’s certainly a high point (for me),” he said. “This case
could profoundly affect the enforcement of civil rights law in
this country.”

Boutrous, who received his J.D. from the University of San
Diego, has represented corporations and other clients in
federal and state court.

He represented Time Inc and Matthew Cooper in contempt
proceedings related to the Valerie Plame case, and in 2004
persuaded the Michigan Supreme Court to overturn the largest
sexual harassment verdict in U.S. history against
DaimlerChrysler Corp.

He is one of the lead lawyers for the plaintiffs in the
pending federal constitutional challenge to California’s ban on
same-sex marriage.

The Wal-Mart case marks Boutrous’ first argument before the
Supreme Court. Boutrous said he was looking forward to arguing
the case, and called the class certification unfair.

“This case presents extremely important class action issues
— not just for Wal-Mart but for all employers, large and
small, and employees nationwide,” he said.

The case is Wal-Mart Stores v. Dukes et al, U.S. Supreme
Court, No. 10-277.

In addition to Cohen Milstein Sellers & Toll and the Impact
Fund, the petitioners are the San Francisco non-profit Equal
Rights Advocates, the Baltimore non-profit Public Justice
Center, San Francisco law firm Davis Cowell & Bowe and Santa
Fe, New Mexico-based law firms Tinkler Law Firm and the Bennett
Firm.

In addition to Theodore Boutrous of Gibson, Dunn &
Crutcher, Wal-Mart is represented by Gibson Dunn lawyers
Theodore B. Olson, Rachel S. Brass, Theane Evangelis Kapur,
Mark A. Perry and Amir C. Tayrani.
(Reporting by Moira Herbst of Reuters Legal; Research
assistance by Terry Baynes of Reuters Legal; Editing by Amy
Stevens, Amy Singer and Ted Kerr)

Two veteran litigators to face off in Wal-Mart case