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The Wal-Mart Crusade

 
Brian Stauffer

Franklin Azar's office doesn't look much like the headquarters of a holy jihad.

His law firm occupies nearly two floors of a surprisingly low-key, boxy Aurora office building that is hidden in an anonymous office park tucked between equally anonymous subdivisions. Inside, the rooms are comfortable but hardly flashy. The space that houses seventeen attorneys could just as easily be home to an accounting firm.

As the late afternoon sun streams through the windows of his large corner office, Azar leans back in his leather chair, smoking an imported cigar. A Stolichnaya and soda is on his desk, and the nearby television provides ambient background noise. At this hour it's Shipmates, a dating show that features cruise partners who seem to lose a new article of clothing just before every commercial break; at other times, Azar might be caught watching Charmed or Excalibur (his favorites).

Azar loves television and movies, and he often sees his life -- and the court cases he's involved in -- as Hollywood-style epics. This is fitting for someone who is a minor celebrity on the Denver small screen. Azar's in-your-face commercials -- "Have you been injured in an accident? I can get you more money!" -- are a fixture of daytime and late-night TV, helping him establish one of the most successful practices in town for personal-injury suits.

While keeping an eye on Shipmates, Azar looks over a printout tracking the number of calls that have come in after the most recent TV ads.

"Television is very effective," he says. "When my dad practiced law in Trinidad, he just hung a 'lawyer' sign outside of his window, but you can't do that anymore."

Silk-stocking 17th Street lawyers often scorn him for that type of publicity, but it's paid off for Azar. He files several thousand personal-injury lawsuits every year and is currently involved in ten class-action suits (most of them targeting pharmaceutical companies). More than 90 percent of the personal-injury cases are settled out of court, often for a couple thousand dollars. Azar doesn't like to estimate annual revenues, but his firm takes a 30 percent cut of every settlement, a sum that adds up quickly with such a large number of cases.

Azar is aware that many of his colleagues have a dim view of him because of the ads. "A lot of guys are jealous because I'm on TV," he says. "The perception is the guys on TV aren't as good. I was talking to a lawyer today, and he said, 'You're a lot better lawyer than you seem on TV.'"

As if to prove it, Azar shows off a wall full of photos of his beaming mug with household names: Johnnie Cochran of O.J. Simpson fame; legendary Texas attorney John O'Quinn, who played a pivotal role in winning multibillion-dollar verdicts against tobacco companies; former prosecutor and author Vincent Bugliosi; and politicians such as Bill Clinton and Tom Daschle.

Azar frequently dines at the Palm restaurant downtown, Denver's best-known hangout for power brokers. He has a table near the entrance and is on a first-name basis with most of the staff. He loves to glad-hand the prominent attorneys who are also frequent diners, greeting Steve Farber and Norm Brownstein -- the most politically powerful lawyers in the city -- by their first names, then asking if he can get back the money he donated to Tom Strickland's losing senatorial campaign.

Farber, who considers himself a friend of Azar's, says establishment attorneys who dismiss Azar as a "TV lawyer" are somewhat hypocritical, since many of their firms are hiring marketing experts to help them gain new clients. "Far be it from me to demean anybody for using TV to advertise their services," Farber says. "Some people look down at that; I don't. If they deliver what they say they're going to deliver, then God bless them."

Azar is also on Farber's list of people willing to make substantial donations to high-profile charity fundraisers -- he's contributed to the University of Denver, cancer research, the American Heart Association and dozens of others -- a key factor in Denver's civic pecking order.

Azar clearly wants to enter the big leagues of plaintiff's attorneys. And he may have found his way in by suing Wal-Mart, already costing the company $50 million.


Azar's seven-year crusade against America's most successful discount retailer began in Trinidad, the hardscrabble southern Colorado mining town where he was born in 1957. Foreshadowing Azar's fights, the town was the scene of some of the United States' most violent labor battles in the early twentieth century, as miners fought for an eight-hour day and recognition of their union. Fiery labor organizer Mary "Mother Jones" Harris even came to take up the miners' cause.

Then, in 1914, the Colorado state militia attacked a tent camp of strikers in nearby Ludlow. Two women and eleven children died in the ensuing fire. "Remember the Ludlow Massacre" soon became a rallying cry for labor groups around the country, and children growing up in Trinidad heard stories of how their parents or grandparents dodged bullets in the fight for a better life.

Azar may now be a big-city, jet-setting attorney who drives a gray Bentley, but he still hears the echoes of those Trinidad miners and can't deny his deep southern Colorado roots. "I knew someone whose dad was killed in a mine," Azar says. "It was awful. I used to go to a bar in Trinidad, and all the old miners would be there coughing with black lung disease. After five years, they'd all be dead."

Azar's kin were ranchers, though. His great-grandfather, William Azar, owned the Saliba Ranch near Walsenburg. Growing up, Azar helped work the ranch. "We fixed fences and watered the cattle," he says. "Branding cattle is really hard work. It was an experience."

Hard work and pride of heritage are what he remembers most about the Trinidad of his youth. "There were a lot of Italians and Hispanics; it was very Catholic and Democratic. There were people from central Europe brought over to work in the mines. The high school football team was the Miners, and they were known for being tough."

But he never got to be a Miner. When Azar was in high school, his father died, and he was sent to a Catholic boarding school in Cañon City, where he played on the football team. After that, he attended the University of Colorado and went on to study law at the University of Denver. He was following in his father's footsteps. Rather than stay on the ranch, the senior Azar -- also named Franklin -- had gone to Harvard on a scholarship. He then returned to Trinidad, where he was later elected district attorney.

"My dad had a strong sense of right and wrong," Azar says. "I could never do criminal defense work, because my dad had been a prosecutor."

He apparently had the same effect on his other children: Azar's sister, Yvonne, is an attorney in Denver, and his brother, William, is a lawyer in Anchorage, Alaska.

Azar has stayed close to Trinidad despite locating his practice in Denver. He frequently visits his mother, Olga, who still lives there, and he is active in community events, sponsoring an annual golf tournament to raise money for scholarships at Trinidad State Junior College. For several years, Azar also kept a satellite office in Trinidad, and he hired a former Las Animas County district attorney, Jon Barclay, to work for him.

"I tell people I'm a small-town attorney, and they laugh," Azar says. "In a small town, you know everybody, and I get interested in people."

These small-town connections led to the first lawsuits against Wal-Mart.

Azar has known his original plaintiff in the case, pharmacist Mike Fiorenzi, since he was a boy. They grew up together in the 1960s, and Fiorenzi remembers the young Azar as being colorful and headstrong. "He was like he is now, except a smaller version," Fiorenzi says. "He liked to enjoy himself. I remember him on the playground organizing things. He gets very emotional about things, and I can see that carried over into his law practice."


Fiorenzi chose a different path, staying in his home town, dispensing prescription drugs to people who were often friends and neighbors. He never imagined he would one day be in the middle of a class-action lawsuit against the largest retailer in the country.

For almost a decade, Fiorenzi ran a small pharmacy in a medical building in Trinidad. He opened his shop in 1977, serving a community that numbers about 9,000. At the time, there were several independent drugstores -- each with its own pharmacist -- in downtown Trinidad. But when Wal-Mart came to town in 1986, Fiorenzi's stint as a businessman came to an end.

Fiorenzi knew that the huge retailer had a reputation for driving under small-town shopkeepers who couldn't compete with the firm's cut-rate pricing. Since the Wal-Mart would have a full-service pharmacy, he decided he would go to work for the chain rather than fight it. Those who did fight were out of business within six years.

Wal-Mart agreed to buy out Fiorenzi's pharmacy if he would run that department in their new store. For several years, Fiorenzi was happy with this arrangement, but that changed around 1992. He was hired to work a set schedule of 45 hours per week; however, he says that eventually he was working as much as sixty hours per week and not being paid any overtime. He complained to store management but was ignored.

"They wanted me to operate the pharmacy and do all this other stuff," he says. "There were a lot of managerial type things; we did our own accounting and insurance billing. There were inventory and paperwork requirements -- a multitude of things that needed to be done. It ultimately fell on me to get it all done. There were many nights they asked me to leave when they were turning the alarms on. I would say, 'I can't possibly get all this done,' and I was told, 'We expect you to get this done, but you won't get paid for it. If you want to work at Wal-Mart, that's the way it is.'"

Fiorenzi stayed at Wal-Mart until he was fired in 1995 for failing to file required paperwork.

"I asked them what error had been made," he says, "and they said, 'We can't tell you anything.' I was pretty conscientious about filling out those forms. They knew I was unhappy about the unpaid overtime. Were they retaliating? I don't know."

After he left he talked over what had happened with his father.

"My father said, 'Mike, you know there's something not right about what transpired. I think there are laws that cover that.' At that point I called up Franklin."

Azar first filed suit against Wal-Mart in 1995, alleging that the company had systematically denied overtime to pharmacists like Fiorenzi in violation of federal labor laws. Hundreds of former Wal-Mart pharmacists around the country soon joined the lawsuit, telling stories remarkably similar to Fiorenzi's.

"It was hard to do everything; you came away exhausted," says Bob Beitscher, who worked for the Avon Wal-Mart in the mid-'90s. "It was so busy, you would wonder if you were giving out the right medicine. They just didn't seem to want to pay for enough pharmacy coverage to make sure everything was done right. I think they were jeopardizing the safety of the public."

At the heart of the case is the question of whether the pharmacists were salaried or hourly employees. Salaried staffers are typically management; they get paid the same amount whether they work thirty or sixty hours, are not entitled to overtime pay, don't clock out for lunch or get docked for medical appointments, work with a fair amount of independence and generally set their own schedules -- within the bounds of the workplace. Hourly employees, meanwhile, have little autonomy, can have their work schedules changed at the discretion of management, must clock in and out, and are entitled to overtime pay.

Wal-Mart claims the pharmacists were salaried, but Fiorenzi's experience more closely resembled that of someone working for wages. "They wanted to pay us as hourly employees and treat us as salaried," Fiorenzi says. "They told me, 'You'll make this much per hour, and we'll pay you hourly.' If you had to go to the dentist, they wanted to know how long you were there so they wouldn't have to pay for it. There were a number of weeks when I was paid for less than 45 hours of work for missing some time."

Wal-Mart denies those allegations, and spokeswoman Cynthia Illick says, "We have a policy to pay our associates for every minute they work. Any manager who violates that policy will be disciplined."

Denver federal judge Zita Weinshienk disagreed with Illick, however, ruling in favor of Fiorenzi and the other Wal-Mart pharmacists in 1999. She found that they were, in fact, hourly employees and had been shortchanged for hundreds of hours of overtime pay. "Businesses cannot cut hours for their own convenience and still maintain that the employees are salaried," Weinshienk wrote in her ruling. "A choice must be made between the convenience of flexible hours or the stability of salaried employees."

This preliminary judgment wasn't a final decision in the case, but such a ruling often prompts companies to settle out of court.

Not Wal-Mart. The retailer's attorneys argue that the complaints of Fiorenzi and the other pharmacists are unique and don't reflect a company-wide policy. "The plaintiffs intend to hand pick some number of plaintiffs to testify about hours worked on and off the clock, whether their base hours and base salaries were reduced respectively and whether their salaries were reduced for absences of less than a day," Wal-Mart lawyers wrote in a court filing. "Our contention is we have a whole bunch of individual situations."

If Wal-Mart can convince the court that the pharmacists were salaried and the stories of unpaid overtime were just isolated incidents, the case will lose its class-action status and the lawsuit will be crushed.

Currently, Azar is spearheading this and one other such case, representing 1,300 pharmacists who claim that Wal-Mart owes them more than $200 million in overtime. Because the suits include the same allegations but involve differing legal arguments, Weinshienk may consolidate the two before presiding over Fiorenzi's case in June.

"They said they're going all the way to the U.S. Supreme Court," says Azar. "They don't care what Judge Weinshienk has to say. Federal judges mean nothing to this company."


Trinidad has one of the most beautiful downtowns in Colorado, with a mix of architecture that includes Victorian-era commercial buildings and mission-style structures highlighting southern Colorado's Hispanic roots. Many of the streets are paved with bricks, and a sign on the impressive Holy Trinity Church notes that the sanctuary was built in 1885 but the parish was founded in 1866.

For more than a century, downtown was Trinidad's retail heart, with stores such as Ben Franklin and Kress gracing its streets. There were five independent drugstores, a fabric store, a craft store and several appliance stores, among other things. "We had everything we needed downtown," recalls longtime resident Mike Romero. "All our Christmas shopping was downtown. Everything was done downtown."

But since Wal-Mart arrived in 1986, many storefronts have stood empty. America's largest discount retailer and Colorado's largest private employer (there are 20,000 workers at 56 Wal-Mart and Sam's Club stores), Wal-Mart is now Trinidad's village market. Residents often visit several times a week, buying essentials and chatting with neighbors.

"It was a difficult situation for the downtown merchants," says Fiorenzi. "The shoe store and children's clothing store disappeared. The hardware and appliance stores went out of business."

But when Wal-Mart decided to open an even bigger store in Trinidad in 1997, the town anted up concessions. The city council agreed to reimburse Wal-Mart for $300,000 the chain spent putting in gutters, curbs and storm drains. City Manager Jim Soltis says the tax revenue from Wal-Mart is vital to his city, and that was why Trinidad needed to strike a deal with the company.

"It's a significant part of our sales-tax collections," he says.

The new Wal-Mart is several miles south of downtown along I-25. By far the largest store in the area at 150,000 square feet, it is open 24 hours and includes groceries, an auto center, a hair salon, an optometrist and a larger pharmacy. "Wal-Mart salutes our neighbors who make the products you buy," reads a banner in the store, even though much of the merchandise is made in China or Latin America.

The store is one of Trinidad's largest employers, hiring dozens of people to work as sales "associates."

It was sales clerks such as these who prompted the biggest -- and most successful -- lawsuit to date against Wal-Mart. About the same time Azar went to court for the pharmacists, he also sued on behalf of current and former Wal-Mart hourly employees in Colorado who had not been paid overtime. "It all started with Fiorenzi," Azar recalls. "We thought, if they're doing this with the pharmacists, they have to be doing the same thing with the hourly workers."

That lawsuit contained extensive allegations of managers forcing $7-per-hour employees to work "off the clock" at the end of their shifts and altering time cards to delete paid breaks and time worked over forty hours. The experience of employees at the Trinidad Wal-Mart played a big part in the case, and the plaintiffs were able to obtain payroll records for the Colorado stores that documented many of their charges.

That class-action suit, which had 67,000 plaintiffs, was settled in 2000 for $50 million. As part of the agreement, Azar is not allowed to discuss that case with the press. However, his success prompted similar lawsuits in 28 states -- all alleging that Wal-Mart managers were doing the same things as those in Colorado. Some stores reportedly went so far as to lock employees in, forcing them to stay and work unpaid after their shifts.

Azar is a co-counsel on most of the suits in the other states, and many of the attorneys who had been involved in the national litigation against the big tobacco companies in the '90s -- including O'Quinn and Florida's Fred Levin -- have joined several of the suits. (Class-action lawsuits often involve several firms since the large costs are difficult for just one to bear. In most of the states, the local firm is the lead counsel.)

Wal-Mart has aggressively fought these suits in court, usually refusing to settle and tying up the cases in endless appeals. Wal-Mart spokeswoman Illick says the firm doesn't usually comment on litigation, but insists that "what took place was within the law."


And so Azar -- a wealthy attorney, a connoisseur of fine dining, a registered Republican with a taste for British luxury cars and expensive country clubs -- has improbably become one of the leading champions of the rights of low-wage employees.

"Wal-Mart doesn't care," Azar says. "They're trying to redo labor law in this country. They want to have everybody working for free, just like the pharmacists have been doing for Wal-Mart. John O'Quinn called this a holy jihad, but we don't like to use that term, being Catholics. We're crusaders, and this is the holy grail for working people in America."

Azar's offices are ground zero for this legal bout. An entire room is stacked to the ceiling with documents from the case, including boxes full of pharmacy payroll records that are reviewed meticulously by several employees. The atmosphere is right out of the Cold War: Azar has the offices checked periodically for listening devices to make sure Wal-Mart hasn't resorted to eavesdropping on its opponents.

Gerald Bader, Azar's co-counsel on the case, shares the building with him. Bader is one of the most experienced class-action attorneys in Colorado, and Azar brought him in early. As the Wal-Mart case grew, Bader decided to move his office across the hall so the two staffs could work easily together.

"Jerry has been doing class-action since 1971, and he's very respected by the federal judges," Azar says.

In court, Bader usually makes the arguments on behalf of the Wal-Mart pharmacists, while Azar and his staff handle much of the behind-the-scenes nitty-gritty of obtaining depositions and sorting through stacks of documents. Azar sees his role as a strategist, figuring out the best way to respond to Wal-Mart's defense. Most of the personal-injury cases are handled by Azar's sixteen lawyers, but he tries to argue a case before a jury at least once a year. He says he likes being in court but finds that his time is often better spent helping his attorneys prepare their cases.

"See what I'm up against," says Azar, pointing to a two-foot-tall stack of documents from Wal-Mart that were just delivered. "These guys would bust the average guy. You have to have a lot of money to take them on. If you're going up against them, you have to have the wherewithal to stick with it. In the pharmacists' case, we probably have $2 million in hard costs and $6 million in attorneys' time."

Azar has computer files on the 1,300 Wal-Mart pharmacists he is representing, each of whom is assigned to a staff attorney. As the case progresses, the firm has to stay in touch with all of them. Some of the older pharmacists have passed away, and Azar fears more will die before the case is decided.

"This will probably go on for another seven or ten years," he predicts. "I hope my clients are alive and I'm alive."

Wal-Mart was extraordinarily hostile right from the beginning of the lawsuit, Azar says, often refusing to provide documents the court ordered the company to hand over and even trying to disrupt depositions at the company's Bentonville, Arkansas, headquarters.

"Under the law, you can take a deposition, and we asked for the person who was correcting the payroll," Azar says. "They gave us the receptionist in the pharmacy department. I felt sorry for the woman; she looked like a deer in the headlights. Their attorneys were laughing. They thought it was funny."

According to Azar, the company also has routinely delayed providing evidence to the plaintiffs.

"They produced 35 boxes of documents they said hadn't existed three weeks before the trial date," he claims. "We asked for payroll records four or five times, and they said they didn't exist. Then they magically appeared: They said they found them on a disc in someone's desk. I've never seen anything like it."

Early in the case, Wal-Mart insisted it had comprehensive payroll records in a warehouse that would prove it hadn't docked any employee's pay.

"I thought we were going to get killed," Azar says.

Until he got a call from a district manager in Minnesota, that is. She was about to marry a Wal-Mart pharmacist and, according to Azar, had been threatened with losing her job if her fiancé joined the lawsuit. She was so angry, she called Azar and told him she knew there was no evidence in the warehouse.

Since that case was filed, Wal-Mart has been through a half-dozen different legal firms, constantly bringing new lawyers into court. "Every time their attorneys tell them they're in trouble and should settle, they fire them," Azar says. "If they don't like the message, they kill the messenger."

Wal-Mart acknowledges that there are approximately 10,000 lawsuits pending against it around the country. The company is sued thirteen times a day for everything from injuries sustained by customers to employee discrimination, and it is now one of the biggest litigation targets in America. According to a recent story in the Cleveland Scene, Wal-Mart has been slapped with 75 sanctions by angry judges over the past six years after it was found to have destroyed, altered or hidden evidence. That number of sanctions is remarkable for a major corporation, since each sanction can carry fines running into the millions.

In Cleveland, Wal-Mart was sued by the widow of Tom Davis, a forty-year-old Sam's Club forklift operator who was killed in 1992 when a truck eased away from the dock just as he was moving pallets off the semi. During the trial, it was revealed that the company had concealed the existence of an internal memo regarding previous dock accidents. The jury awarded Bernadine Davis $2 million.

Azar says this fits a pattern of deceit by one of America's most prominent corporations.

"Wal-Mart doesn't think the legal system applies to them," he says. "Their attitude is, 'We have more money than you, and if you try to come against us, we're going to bury you.'"


The biggest regret Fiorenzi has about his time at Wal-Mart is the effect it had on his family life. As the pressure mounted to do more and more work, he spent less and less time with his children.

"I had young children, and it was tough," says Fiorenzi. "I can't tell you the number of school plays and sports events I missed. It fell on my wife to raise the kids."

At one point, Fiorenzi was confronted by his wife about his long hours.

"I told her either I come home and get hollered at at work, or I stay at work and get hollered at by you," he says.

While Fiorenzi managed to keep his family together, other Wal-Mart pharmacists weren't so lucky.

"I've talked to hundreds of pharmacists around the country who worked at Wal-Mart," he says. "They all did the same thing I did and put in the extra hours. There are sad stories -- health ruined, family relationships ruined."

Even though Fiorenzi, who now works at a hospital pharmacy an hour away, had such an unpleasant experience at Wal-Mart, he still shops there. In many small towns like Trinidad, Wal-Mart brought choice, all-in-one-place shopping and access to mainstream popular culture that wasn't always available before -- and at what residents consider a bargain.

"I worked there for nine years and know a lot of people there," he says. "It's a community gathering place. For most necessities, Wal-Mart sells cheap. You can't argue with their pricing. They're able to do that because they keep their other costs so low. They do know how to make money."

And that, Azar says, is precisely the problem.

"If you're getting people to work for ten hours a day and paying them for eight, you can undercut your competitors," he says. "That's why they're able to put everybody else out of business. I've never gotten a call complaining about Target or Kmart. They pay people."

Even more disturbing to Azar is what Wal-Mart's behavior portends for working people in the United States.

"This is now the biggest company in America. They employ more people than General Motors," he says. "We've caught them red-handed erasing time off people's time cards. When you're doing that for 900,000 people, that comes out to a lot of money. You can sell stuff for a lot cheaper than anybody else. People say, 'I go there because they have cheap prices.' Now you know why. Eventually, you'll be buying everything at Wal-Mart, and everybody in the country will be making $7.25 an hour."

When employees are not paid overtime, state and federal labor departments are supposed to investigate. However, the government hasn't intervened to help the Wal-Mart employees. "The whole thing is, why do lawyers get involved in this?" Azar asks. "It's because of the department of labor. They say, 'We're understaffed; we don't have the manpower to deal with it. You guys handle it."

Azar vows to keep up his crusade -- and maybe even make the big time doing it.

"It's awfully tough to bury some guys from Trinidad," Azar says. "They tried to bury us in the coal mines, but we remember the massacre. We're tough. Wal-Mart said, 'We have a lot of money, and we're going to fight this all the way to the Supreme Court.' I said, 'So what?'"

He's now preparing to do battle at what promises to be a dramatic three-week trial in June. Azar is eagerly anticipating national media exposure, with television crews set up in the lobby.

"I can't wait for the trial!" he says gleefully, then speculates on the potential for the case to make it to the big screen.

"Don't get John Travolta to play me. I'd like Nicolas Cage," says Azar with a dreamy look on his face.

Then his thoughts turn to the hard legal fight ahead, and reality interrupts the daydream. He shrugs his shoulders.

"If I don't win, I guess I won't ever make it to Hollywood," he says.


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