Tim Garrigan tells LawyersandSettlements, "I think I watched too much TV when I was young and impressionable, and I thought civil rights lawyers would be treated like rock stars. Well, it didn't quite work out that way, but I still can't think of anything else I would ever want to do, and I'm very lucky to be able to do it."
That work includes a long and successful race discrimination class action against Lufkin Industries of Lufkin, Texas, a big manufacturer of oil field equipment, power transmission products, and highway trailers, that was recently affirmed by the Fifth Circuit Court of Appeals.
LawyersandSettlements (LAS): The Lufkin case has been going on for over a decade; where does it stand now?
Timothy B. Garrigan (TBG): The Fifth Circuit Court of Appeals recently affirmed most of the original findings and remanded it to district court for the Eastern District of Texas for consideration of more specific injunctive relief, as well as a more current formulation of the back pay award and reconsideration of the attorneys' fees. We were very pleased with that opinion; that case has been a major effort for me since 1997.
LAS: What was the origin of the case?
TBG: Lufkin Industries is one of the biggest employers here in rural east Texas, and I had over the years had several visits with different African American employees complaining of the way they were treated and the segregated nature of the work force. Two men, Sylvester McLean and Buford Thomas, especially had significant complaints that led to the case. They were the two initial named plaintiffs.
The class in the case consists of all African American Lufkin employees at any time between 1994 or 1996 and the present. So somebody hired yesterday is a member; we've estimated that to be between 700 and 900 class members, which is quite a large class, especially in small-town eastern Texas.
Both of the named plaintiffs had had significant careers at Lufkin Industries. Buford in particular had been selected for a management trainee program, probably the first African American to be selected. The then president of the company, who had been instrumental in bringing him in, hadn't been able to keep up with making sure he was treated fairly. He'd had a frustrating career; he couldn't get promoted, and he finally resigned because of the discrimination.
Sylvester also had a very long career since coming back from Vietnam. He had pushed hard for promotion, he had talked to the former president about the lack of opportunity at Lufkin for African Americans. The former president took an interest in his case, and before he resigned was probably instrumental in making sure they considered him for promotion to a management position. But after he resigned, the remaining management continued to treat African Americans worse than anybody else.
In fact, Sylvester had worked his way up to a corporate quality assurance management position, but it was only a matter of time before they found an excuse to get rid of him. If he hadn't had so much seniority, he probably would have been fired. He was demoted back to hourly employment commensurate with his seniority, but at the same time was told not to bother applying for any promotion.
So for both these guys, they had no choice but to fight it or walk away. They both went into the case for the right reasonsï¿½they didn't want future generations to have to face the same discrimination they had. And now it looks like we're going to be able to accomplish that.
LAS: Was the original case filed as a class action?
TBG: The initial case was filed with a class allegation. The first thing the court looks at is whether to certify the class. That took a couple of years. We filed in federal court in the Eastern District of Texas. We drew Judge Howell Cobb; I think we were very very lucky to get Judge Cobb. On the one hand, he was a Republican appointee and had a very conservative reputation, but on the other that lent his ultimate findings a lot more weight than another judge's might have in the Fifth Circuit Court of Appeals.
He took a great interest in the case. During the class certification hearing, one allegation was that African American employees were disproportionately sent to Lufkin's foundry to work under horrible conditions. The company officials were testifying that the conditions there weren't so bad. Judge Cobb immediately recessed the class certification hearing and ordered everyone to take a tour of the foundry when no one was expecting us to be there.
It was actually the first time I'd been there. The descriptions I'd heard of the place were like something out of Charles Dickens or the Dark Ages, and they turned out to be accurate. It was hot, dark, dirty, ankle deep in dust, with flames leaping out of the darkness just a few feet away from you. It was everything the plaintiffs had been describing. I do think that was a significant point in the case. It confirmed what many of the plaintiffs had been saying and contradicted much of what the company had been saying.
The class was certified around 1999. Before the class had been certified, I stumbled across Goldstein Demchak in Oakland, California, and they were always kind enough to answer a lot of questions and help point me in the right direction. Normally in a case like this, the class certification alone is a strong enough indicator of the merit that it will precipitate settlement. That didn't happen in this caseï¿½Lufkin's firm, Vinson and Elkins, made clear to me that it would make the case more expensive for Lufkin Industries, and that they would bury me out here in Nacogdoches. At some point, Terry Demchak and the lawyers at Goldstein Demchak offered to help, and that truly was a lifeline.
Lufkin Industries has usually a pretty strong cash position, so they could afford as much defense as money can buy, and they retained Vinson and Elkins, who are a huge firm. It was clear that their primary strategy was to overwhelm me, which is a scary message for a small plaintiff shop to get.
LAS: How did the case proceed after the class was certified?
TBG: It was a bench trial that took place in two stages. We had several days of evidence, then a delay because Judge Cobb had health problems. He issued his ruling in our favor in 2005 after the second trial session.
Both parties appealed to the Fifth Circuit. We thought that the case needed more specific instruction about injunctive relief; we also felt that Judge Cobb had not adequately explained his ruling on attorneys' fees. The company was appealing everything else; they weren't happy with anything.
We drew a very conservative panel at the Fifth Circuit, but I think they did the right things for the most part. They upheld the strongest parts of Judge Cobb's judgement and recognized most of the points we were raising. So that was very encouraging.
Now that Judge Cobb's ruling has been affirmed, where does the case go?
TBG: Well, that's where I'm at a bit of a loss. Both sides asked the same panel to reconsider a few issues and those have been denied within the last week, so the case has been remanded to district court here in Texas. It has always seemed obvious that the case had a lot of merit and that settlement should be seriously pursued. Lufkin Industries hasn't agreed, but we're still hopeful that they will change their evaluation.
As I said, the conventional path would have been for a serious settlement to take place after class certification. That was eight or nine years ago, and that just didn't happen. I think Vinson and Elkins were counting on the Fifth Circuit being so conservative that they would be bailed out regardless of the merits of the case. If that was their evaluation of the case, it was obviously wrong.
Settlement is very much a possibility, it always has been. We have always thought it was the most likely way to resolve this case and would be in everybody's best interests, and our impression has been continuously reinforced, so I think settlement is even more likely now. So we remain hopeful.
I suppose as long as Lufkin Industries can fund the litigation, they can keep appealing, but we've crossed a barrier, and now it's a matter of fashioning and reinforcing the relief. It's significant that the Fifth Circuit has upheld the case. That makes it more likely and more important for Lufkin Industries to talk to us seriously about resolving the remaining issues in a way that everybody can live with.
I do want to gush about the help that we received from Goldstein Demchak. They've been real heroes, great people to work with, and they put a lot of resources into this case. From a settlement perspective, having them at the table changes the dynamics a lot. Without them, there's a good chance Vinson and Elkins would have buried me a long time ago.
Timothy Garrigan, a partner in Stuckey, Garrigan and Castetter, an employment and civil rights firm in Nacogdoches, Texas, is a 1979 graduate of Earlham College, Richmond, Indiana 1979, and received his JD from Northeastern University School of Law in 1983. He joined the Stuckey law firm in 1984.
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Attorney Timothy B. Garrigan: "I thought civil rights lawyers would be treated like rock stars."
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