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SANTA BARBARA, CA -- When it comes to public service, journalists do some of their best work when focused on the here and now. They expose abuse of wealth and power in action, so it might be stopped by sunlight and embarrassment. They describe exploitation of the less privileged in immediate detail, hoping that society will be moved to provide...

by Sebastian Rotella

Sept. 30, 4:23 p.m.: This story has been clarified.

Editor's Note: This story has also been published in Spanish.

RIVERSIDE, Calif. — Shaken by sobs, his head bowed, a former Guatemalan commando testified last week that he wept as he hurled a little boy to his death in a village well 31 years ago while a commanding officer, Lt. Jorge Vinicio Sosa Orantes, snarled: “This is a job for men!”

Sosa, now a 55-year-old U.S. citizen, watched that grim testimony from a defense table guarded by U.S. marshals in a federal courtroom here. His former comrade-in-arms, Gilberto Jordán, accused Sosa of playing a lead role in one of the worst war crimes in the recent history of the hemisphere: the massacre of 250 people in the Guatemalan hamlet of Dos Erres in 1982. Sosa is charged with fraudulently obtaining U.S. citizenship years later by concealing his participation in the massacre.

The trial began last week and is the first trial in the United States involving an atrocity from Guatemala’s 30-year civil war. It is also the first full airing of the Dos Erres case in a U.S. court. Sosa has become the highest-ranking suspect to be prosecuted. U.S. authorities had previously jailed Jordán, who pleaded guilty to immigration fraud charges in 2010, and another ex-soldier who had migrated to the United States. Guatemalan courts have convicted five former commandos. Seven others remain fugitives in an ongoing case that has tested Guatemala’s ability to pursue justice against war criminals shielded by corrupt security forces and powerful mafias.

During the first four days of the trial, federal prosecutors undertook an unusual challenge: attempting to prove Sosa participated in the slaughter to convict him of the relatively minor crime of immigration fraud. When Sosa obtained citizenship in 2008 and a green card in 1998, he allegedly made false statements on immigration forms by failing to disclose his military service and saying he had never committed a crime for which he had not been arrested, according to prosecutors.

The defense argues that Sosa did not think he had committed a crime because he had been a soldier following orders. Sosa’s lawyer also asserted that the questions on the immigration forms were vague and that U.S. immigration officials should have seen in Sosa’s file that he had disclosed his Guatemalan military service in a failed application for political asylum in 1985.

“This case is about an ex-soldier’s answers on an immigration form, pure and simple,” said the lawyer, H.H. (Shashi) Kewalramani, during opening arguments. “As much as the U.S. government wants to make this a war crimes case, it’s not.”

It certainly resembles a war crimes case, however. The testimony in this city an hour east of Los Angeles plunged the jury into the horror in a Guatemalan jungle village three decades ago. Two former commandos recounted a rampage of rape and murder that wiped Dos Erres off the map. A survivor who was a boy in 1982 described clinging to his mother’s leg as soldiers dragged her to her death. And Sosa’s ex-wife and the lead investigator testified that Sosa fled to Mexico and then Canada three years ago after federal agents served a search warrant on his Riverside County home.

Canadian police arrested Sosa, who holds Canadian as well as U.S. citizenship, in 2011 and extradited him to the United States last year.

The testimony began with a dramatic reunion between Sosa and Jordán, who is serving a 10-year prison sentence in Florida. In 1982, both worked as instructors at a school that trained “Kaibiles,” as Guatemala’s notoriously brutal commandos are known. As the civil war intensified, the regime of dictator Efraín Ríos Montt reassigned the instructors to a 20-man rapid reaction squad.  Four were lieutenants—Sosa had the least seniority among them—and the rest were sergeants.

Sosa is a compact, black-mustached martial arts expert. He spent the decade before his 2010 indictment operating karate schools in Southern California. Wearing a dark suit and glasses, he watched last Tuesday as federal marshals brought in Jordán, who wore orange prison overalls and leg chains. The two veterans did not acknowledge each other.

Jordán looked older than his 57 years: bespectacled, gray-haired, tormented. In 2010, he confessed his involvement in the massacre when federal agents went to his home to question him. He told the agents he had known the day would come when he would have to pay for his actions. He faces deportation to stand trial for mass murder in Guatemala upon his release.

Jordán testified in Spanish through an interpreter. He said he has received no deal other than a promise that U.S. prosecutors will write a letter to Guatemala’s attorney general saying he has cooperated.

The initial goal of the mission on Dec. 6, 1982, was to recover 21 rifles that guerillas had taken during an ambush on soldiers, Jordán testified. Intelligence indicated that the rifles were in Dos Erres, but Jordán said the squad found no rifles or guerrillas and encountered no resistance from the peaceable citizens of the hamlet. The commandos separated the men from the women and children and herded the two groups into a church and a school. The nightmare began when a lieutenant raped one of the women, Jordán said. After a meeting among the lieutenants, new orders were given, Jordán testified.

“The mission changed,” he said. “They ordered us to kill all the people.”

Jordán was a seasoned paratrooper at the time, but he had not yet become a Kaibil. He portrayed himself as an unwilling participant in the slaughter. He testified that he was ordered to bring a child and throw him into a well in the center of the village that became the epicenter of the massacre.

“He was about 3 years old, the age of my son,” Jordán testified.

Jordán bent forward in the witness stand and wept as he continued, staring straight down. He said: “As we were on our way, I was crying. He was staring at me and crying as well. A sergeant told me not to cry or I would end up in the well … I arrived and that’s when I heard Mr. Sosa, and he said this was a job for men and I threw the child in the well.”

Assistant U.S. Attorney Brian D. Skaret asked how Jordán felt at that moment. Jordán lifted his head and snapped: “Bad!”

The testimony of Jordán and another ex-commando, César Franco Ibañez, placed Sosa at the edge of the well supervising the methodical extermination of the villagers. The commandos blindfolded their victims, questioned them, slammed them on the head with a metal sledgehammer and dumped them into the well, according to the testimony. Both witnesses testified that a man who had fallen onto the pile of victims insulted Sosa, and the enraged lieutenant fired his gun into the well. Jordán testified that Sosa also tossed a grenade in the well.

“I think he lost his head and started firing,” Franco testified. “He answered them with his rifle … He said: ‘Well die, you sons-of-bitches.’ ”

Franco remained impassive when he testified about killing people and raping a woman. The short, stocky former sergeant is one of two members of the squad who broke the military’s code of silence in the mid-1990s   and gave unprecedented first-hand testimony. Guatemalan prosecutors made Franco a protected witness and relocated him another country, where he lives today with his family. The Guatemalan government pays him a $550 monthly stipend, he said. He has testified in previous U.S. and Guatemalan prosecutions and given interviews to news organizations, including ProPublica.

During cross-examination, the defense attorney tried to cast doubt on Franco’s testimony, asserting that his story has changed over the years about details such as whether Sosa used a rifle or a shotgun. Kewalramani cited a prosecution report about an interview of Franco by U.S. investigators, saying Franco had not mentioned Sosa in a list of commandos at the village well during that interview in a U.S. embassy in the country where he lives.

Franco insisted that the report was wrong.

“I also mentioned Sosa,” Franco testified. “… I named him since the very beginning.”

Another challenge to Franco’s testimony arose from an unexpected source Friday morning. Prosecutor Skaret disclosed in court that the section chief of the Justice Department’s war crimes unit had received an email from a prosecutor who is on leave. The prosecutor, George Ferko, wrote in the email that he had read about Franco’s testimony in news reports and was compelled to alert his colleagues that he felt the witness was not credible, according to Skaret. Ferko had interviewed the ex-commando as part of an investigation in 2009, Skaret said.

“César is a liar,” Ferko wrote, according to Skaret’s statement in court. “César has changed his story once again.”

As a result, Sosa’s attorney said he wanted an opportunity to talk to Ferko to decide whether to call him as a witness. The episode was remarkable: It is highly unusual for a Justice Department prosecutor to raise questions about a witness being used by his colleagues in the middle of a trial.

Nonetheless, the development may not have much impact. The defense has not challenged the central point of the testimony by the two former Kaibiles: that Sosa took part in the Dos Erres massacre.

During a phone interview from a Canadian jail last year with ProPublica, Sosa insisted he was not present at Dos Erres on the day of the crime. During the interview and in letters provided to ProPublica by his brother, Sosa claimed that he was working 100 miles away on a civil affairs project in a town called Melchor de Mencos, where he said he helped residents obtain school and sports supplies.

The defense has not repeated that claim during the trial. Without explicitly admitting Sosa’s involvement, Kewalramani’s opening argument emphasized the idea that the Guatemalan civil war was a brutal conflict and that Sosa was part of an elite unit that was trained to carry out orders. Sosa will not testify, his lawyer said Friday.

The prosecution ended its case with testimony from Ramiro Osorio Cristales. Osorio is the eldest of two boys who were spared, abducted by commandos and brought up in the soldiers’ families. The other boy, Oscar Ramírez Castañeda, was only three and does not remember anything about Dos Erres. Ramírez now lives in Boston and his story was told by ProPublica last year.

Osorio lives in Canada. He was 5 years old when he lost his parents and six siblings in the massacre. He described his memories in accented but clear English, his voice breaking, pausing to regain his composure.

Osorio recalled that armed men burst into his house at night and dragged out the family. The men tied up his father and older brother with ropes around their hands and necks and brought them to the school with the rest of the men of the hamlet, he testified. The assailants herded the other children and their mother into the church with the terrified women and children of Dos Erres, according to his testimony.

“They started taking out women from the church,” Osorio testified. “They grabbed a woman by her hair and pulled her out, some young girls, teenagers. Their mom was saying ‘Please don’t take my kids.’”

Osorio watched between the wooden slats of the church walls as soldiers raped women and killed children by smashing them against a tree, according to his testimony.

“They treated them like animals,” he said.

Then the soldiers came for Osorio’s mother, he testified.

“I remember grabbing my mom by her leg,” he testified. “We was fighting with the guys … ‘Don’t take my mom.’ I ran to the back of the church to see what was happening to my mom. She was screaming for help: ‘Please don’t kill us. Don’t kill us. Don’t kill my kids, they don’t know nothing.’ ”

Osorio said he eventually fell asleep under a bench in the church. When he awoke, he testified, only four other children remained. Three of them were girls whom the commandos raped and murdered the next day. Only Osorio and Ramírez survived.  When Osorio finished his testimony, jurors and spectators wiped away tears.

The trial is likely to end Monday because the prosecution pared down its initial list of witnesses, choosing not to call two more former commandos. The judge also said she has tried to speed up the trial because of the imminent possibility of a shutdown of the federal government. If the defense decides to call the former prosecutor who has questioned Franco’s truthfulness, that testimony will take place Monday before closing arguments.

Clarification: This story has been revised to clarify Osorio’s testimony that he was one of five children still alive after the soldiers’ initial assault on Dos Erres.

Chris "Mad Dog" Russo, a sports-talk radio host on Sirius/XM satellite radio (and formerly half of the best and most popular show of its kind, the Mike and the Mad Dog Show on WFAN in New York) recently opened his program not by recapping the dramatic action from pro or college football over the weekend, but by complaining at length...

After seven months of closed-door negotiations, Google France and a French media association announced the details of a 60 million euro ($81 million) fund earlier this month to spark legacy publishers' transformation to digital, but it immediately became controversial, because the money will not be open to all media. The Digital Innovation Press Fund (known in French as Fonds pour...

The Washington Post has a fantastic, 6,300-word piece on the events leading to the Graham family's sale of the paper to Jeff Bezos. There's a lot of news here, including the fact that Don Graham talked to Robert Allbritton about buying the paper. Fortunately, the sure disaster that would have been a Politico Post didn't come to pass. The Post...

Culled from CJR’s frequently updated “Must-reads from around the Web,” our staff recommendations for the best pieces of journalism (and other miscellany) on the Internet, here are your can’t-miss must-reads of the past week: Horse_ebooks is human after all -- The people behind the beloved spambot Columbia professor Prabhjot Singh was attacked in NYC for being Sikh on Saturday --...

PROVO, UT -- In 1995, James "Jay" Shelledy, then the editor of The Salt Lake Tribune, started a newsstand and billboard campaign asking people to "Think of Utah Without It"--"it" being the Tribune. The campaign was ostensibly in response to the newspaper strike unfolding at the time in Detroit, but it was also meant to emphasize the independence and singular...

The New York Times celebrated its 162nd birthday in style last week with the launch of "Tomato Can Blues," a longform multimedia piece that tells the story of Charlie Rowan, a small-time cage fighter turned petty crook. Featuring scrolling, comic book-style illustrations, and narration by actor Bobby Cannavale, the article's multimedia elements quickly drew comparisons with the Times' other interactive...

by Nina Martin

I’m Nina Martin, ProPublica’s new reporter covering gender and sexuality issues. (You can read my first story, on the impact of the Walmart discrimination case, here.) It’s a topic I’m passionate about, and it’s been a major theme in my work as a writer and editor for many years. My background spans newspapers (The Baltimore Sun, The Washington Post, the International Herald Tribune), legal journals, health and parenting magazines, and most recently, San Francisco magazine, where I wrote and edited pieces about everything from wrongful convictions to same-sex marriage.

My wide-ranging experience informs how I view this new beat for ProPublica. I am interested in how gender and sexuality issues intersect with the legal system, the health care system, the education system, the political system, the economy, the military, and everything in between. I also want to hear from you. What topics in gender and sexuality do you think deserve more coverage? Head over to ProPublica’s Reddit page, InvestigateThisNews, and let me know what issues you care about.

P.S. I’m based in Berkeley, CA, but I’m interested in stories in every part of the country.

I’m excited to get started—please send ideas and feedback! 

by Christie Thompson

Today, ProPublica's Nina Martin reports how the landmark Walmart vs. Dukes ruling in 2011 has changed the face of discrimination law. “The Dukes decision had been cited more than 1,200 times in rulings by federal and state courts,” Martin reports. “Jury verdicts have been overturned, settlements thrown out, and class actions rejected or decertified."

We've rounded up some other key reads on a wide range of workplace discrimination, from the rape of undocumented farm workers to sexism in Silicon Valley. What stories did we miss? Let us know in the comments below, or tweet them to #MuckReads.

Note: We know discrimination is intersectional. We’ve focused our picks on those dealing primarily with gender and sexuality, but we welcome your suggestions for important reporting on discrimination of any kind.

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by Nina Martin

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When the U.S. Supreme Court issued its 5-4 decision in Wal-Mart v. Dukes in June 2011, no one needed a Richter scale to know it was a Big One. In throwing out a mammoth lawsuit by women employees who claimed that they’d been systematically underpaid and underpromoted by the world’s biggest corporation, the ruling upended decades of employment discrimination law and raised serious barriers to future large-scale discrimination cases of every kind.

Employers rejoiced. Others predicted serious setbacks for women and minorities, especially in employment discrimination cases brought under Title VII of the Civil Rights Act of 1964. That landmark law had opened the way to the use of the class-action lawsuit as a potent weapon for people who could not stand up for their rights on their own.

Two years later, it’s becoming clear just how much the ruling has reshaped the American legal landscape.

The Dukes decision has already been cited more than 1,200 times in rulings by federal and state courts, a figure seen by experts as remarkable. Jury verdicts have been overturned, settlements thrown out, and class actions rejected or decertified, in many instances undoing years of litigation. The rulings have come in every part of the country, in lawsuits involving all types of companies, including retailers (Family Dollar Stores), government contractors (Lockheed Martin Corp.), business-services providers (Cintas Corp.), and magazines (Hearst Corp.). The aftershocks have been felt in many kinds of lawsuits beyond the employment field, as well.

Many of the rulings since 2011 have not been surprising. Some have been relatively narrow. But others have tread into unexpected territory.

This past August, for example, a federal appeals court in Philadelphia upheld the dismissal of a $7 million settlement between the former National City Bank and 153,000 black and Hispanic borrowers who claimed that the bank had discriminated against them in how it charged mortgage points and fees during the housing bubble. Neither side had sought to revisit the 2010 accord, but the courts did so anyway, ruling that because the class action probably wouldn’t have been certified under Dukes, the settlement was suspect, too

“That is pretty extraordinary,” said Gerald Maatman Jr. of Seyfarth Shaw in Chicago, one of the leading law firms in the country defending businesses and employers against class actions. “It shows how much the standards have changed.”

Courts in prior decades had typically rubber-stamped such settlements, he said.

“It’s a whole new world,” Maatman said.

One measure of that change is the difference in the size of employee discrimination settlements as reported in Maatman’s widely read Workplace Class Action Blog. In 2010, the year before the Dukes decision, the top 10 settlements totaled $346 million; in 2012, the first year after Dukes, that total plummeted 87 percent, to $45 million.

Another measure, lawyers representing women and minorities say, is the drop-off in new employment discrimination class-action lawsuits being filed. Before Dukes, it was normal to see 25 or 30 such cases every year, said Jocelyn Larkin, executive director of the Impact Fund, a law firm/national litigation resource center based in Berkeley, Calif., which helped bring the Wal-Mart suit in 2001. Now, Larkin said, the number of new cases is closer to 10 or 12 a year.

Even in this new world, there have been some class-action victories. On Sept. 6, Bank of America and its Merrill Lynch unit settled a sex discrimination class action with female brokers for $39 million. The week before, Merrill agreed to pay another $160 million for discriminating against African-American brokers, the largest class-action settlement ever in a race-bias case. Merrill and Bank of America had tried to argue that the Wal-Mart ruling meant that the lawsuits should not be allowed to proceed as class actions — an argument that, in these instances, a federal court didn’t buy.

But for advocates for women and minority workers, the mood is mostly dispirited. Economic disparities — between people of color and whites and between men and women — have been widening and complaints of mistreatment in the workplace are common. San Francisco’s Equal Rights Advocates, another firm involved in the Dukes case, has seen a tripling of calls to its nationwide hotline, said executive director Noreen Farrell. Many of the calls are from low-wage women facing discrimination on the job and elsewhere.

Even before Dukes, “they already had many obstacles,” Farrell said. To fight these battles individually, “it’s often impossible.”

 

Edith Arana, now in her early 50s, was a mother of five with 10 years of retail experience when she started working at a Duarte, Calif., Wal-Mart store in the 1990s for $7 an hour. In six years, she received excellent performance reviews but never rose beyond a low-level “support manager.” When she began pressing for a promotion, her supervisors cut her hours, she claimed, finally forcing her out of her job.

“I thought to myself, no one’s going to believe you — you’re just one person,” Arana said.

Eventually, though, Arana found her way to Equal Rights Advocates. The firm had heard many similar stories. Their lawsuit was filed in San Francisco in 2001.

Wal-Mart had a written anti-discrimination policy and insisted that it “does not condone discrimination of any kind.” It also noted that “women hold positions of significant responsibility” at the company. But it left most employment decisions to the discretion of local managers at thousands of stores across the country. That led to systemic discrimination, the women and their lawyers claimed. Wal-Mart’s own wage and promotion data seemed to show pronounced, persistent wage disparities between male and female employees at every level, from hourly workers to senior managers.

“Wal-Mart has had a strong policy against discrimination in place for many years and we continue to be a great place for women to work and advance,” the company said in a statement to ProPublica.

“The opportunities left a lot of discretion to managers to make decisions based on their own personal views and predilections and idiosyncrasies and biases,” said Joseph M. Sellers, a partner at the Washington, D.C., firm Cohen Milstein who eventually helped argue the case before the Supreme Court.

It was a theory that had underpinned many successful employment discrimination cases over the last 50 years. In 2004, the federal judge overseeing the case certified it as the largest sex and employment discrimination class action in U.S. history. The Ninth Circuit Court of Appeals twice affirmed that ruling.

The Supreme Court ultimately thought otherwise. In his opinion, Justice Antonin Scalia rejected the notion that such a vast company should be held responsible for the workplace decisions of thousands of local managers exercising their own discretion, even if those actions ended up having a disparate impact on female employees.

“What the Supreme Court said is that you can’t group dozens and dozens of different classes into one class action and say, ‘Oh everyone’s an employee and everyone’s fighting gender discrimination, so they belong together,’” said Ted Frank, an adjunct fellow with the Manhattan Institute's Center for Legal Policy.

Other experts blamed the plaintiffs for overreaching, and in the process inviting a more conservative Supreme Court to register one of its most significant pro-business rulings.

“When plaintiffs seek to maximize their leverage by suing on a companywide, ‘mega’ basis, they invite judicial reversal,” Columbia law professor John Coffee wrote soon after the decision. “Hubris leads to disaster, and Wal-Mart presents the paradigmatic case of such a train wreck.”

Other aspects of the ruling were also far-reaching. In particular, the court rejected a 35-year-old framework for calculating monetary damages in employment discrimination class actions. Instead of using a statistical formula that assessed damages for the whole class, plaintiffs now had to have individual trials. Many lawyers didn’t see this coming, especially when liberal justices joined conservatives to make that part of the ruling unanimous.

One predictable casualty was the Dukes case itself. This August, the San Francisco federal judge overseeing the lawsuit concluded that even a scaled-back version of the lawsuit, covering only Wal-Mart workers in California, could not move forward. A Texas judge said the same thing last fall about a version of the suit filed there.

Arana, one of the original plaintiffs, lamented the clear implications for female workers like her.

“It can’t just be you out there,” Arana said. “No one person, no one attorney, no one support system is enough.”

Wal-Mart, in its statement, said: “The allegations from these five plaintiffs are not representative of the positive experiences that hundreds of thousands of women have had working at Wal-Mart.”

 

Beyond Dukes, the greatest disruption has been to what are sometimes called “legacy cases” — the sizable and often significant class-action lawsuits that began before Dukes was decided. The fate of a race discrimination lawsuit against a South Carolina steel factory owned by Nucor Corp. is one example of the ripple effects of the Dukes decision.

The lawsuit, brought by seven black Nucor employees in 2004 on behalf of more than 100 coworkers, alleged a widespread pattern of racist acts and promotion practices at the factory. White supervisors and employees reportedly referred to their black colleagues as “yard apes” and “porch monkeys.” Racial epithets were supposedly broadcast over the plantwide radio system, along with “Dixie,” “High Cotton” and monkey noises in response to the communications of black workers. The lawsuit said the Confederate flag was displayed throughout the plant and even emblazoned next to Nucor’s logo on items sold in the plant’s gift shop. Yet another allegation was that whites circulated emails showing black people with nooses around their necks.

In court documents, Nucor denied the allegations and said that all employment decisions were made for “legitimate, non-discriminatory business reasons.”

In nine years, courts have weighed in at least seven times on whether the case should be certified as a class action, with the Fourth Circuit Court of Appeals in Richmond — not known for being particularly sympathetic to workers — finally deciding that there was ample evidence to let the case proceed as a class action. Then, after Dukes, the class was again decertified for all claims except hostile work environment; earlier this month, Nucor’s lawyers were once again in court arguing that even that limited class action should be thrown out because most of the alleged racist acts were limited to one department.

“The problem with the length of this case is that as the case goes on, the Supreme Court keeps drilling more nails into the coffin of effective civil rights law,” said Armand Derfner, a Charleston, S.C., lawyer representing the workers. “The practical effect of decertification is that even if we win, there will not be the kind of change that Title VII was designed to create. A handful of people will win,” but the company “won’t have to make fundamental changes that they don’t want to make.”

 

For all of its force, the Dukes decision contained some ambiguity as well. For instance, the decision said that for a class-action lawsuit to proceed, plaintiffs would now have to show “significant proof of a general policy of discrimination” on the part of the employer. What exactly constituted “a general policy” was left unclear.

“The ruling used some new language which nobody quite knew what it meant,” said Joseph Sellers, the Washington lawyer who had helped argue the Dukes case. “This has injected a new level of uncertainty into cases that were already challenging and expensive and time-consuming to bring.”

The uncertainty spawned by the Dukes decision has been compounded by other Supreme Court decisions. All of it has left plaintiffs trying to “reboot” their various cases with new arguments, and defense lawyers responding with “novel” theories of their own, said Maatman, the Chicago lawyer who represents employers. And many lawyers on both sides are watching to see if the Dukes decision gets invoked in major pending cases, including a class-action lawsuit brought against BP for the 2010 Deep Water Horizon drilling disaster in the Gulf of Mexico.

The explicit and enduring ramifications of Dukes, then, are still to be determined.

“We’re still seeing employee class actions — those haven’t died,” said Ted Frank of the Manhattan Institute. “We’re seeing consumer class actions and securities class actions — those haven’t died. Certainly some bad class actions were slapped down, but the legitimate class actions are going forward.”

Indeed, in perhaps the biggest victory for workers in the post-Dukes era, the Seventh Circuit Court of Appeals in Chicago last year refused to throw out the 2005 lawsuit brought by George McReynolds and other black brokers against Merrill Lynch — the case that led to the record $160 million settlement. Writing for a three-judge panel, Judge Richard Posner, a conservative who has displayed a fierce independent streak as well as a willingness to clash with Justice Scalia in a number of recent writings, said Merrill Lynch’s pay and promotion policies were fundamentally different from Wal-Mart’s in how they encouraged systematic bias.

The McReynolds ruling, then, shows one possible way forward for employees and their lawyers, Maatman said.

“You’re seeing plaintiffs’ lawyers recalibrate, making classes much smaller, focusing on an issue that might be doable on a classwide basis, not trying to certify, as they did in Dukes, the whole enchilada,” he said.

Perhaps the next high-profile test of this strategy will come in March 2014 in San Francisco, where Obama appointee Edward Chen — formerly an ACLU attorney specializing in discrimination cases, and now, after a two-year confirmation battle, a U.S. district judge — is set to preside in a trial against Costco and its promotion policies. Citing McReynolds, Chen ruled in 2012 that the sex discrimination suit, brought by 700 of the retailer’s female workers, could move forward as a class.

In the post-Dukes world, “there’s trepidation,” acknowledged Emily Martin, vice president and general counsel for the National Women’s Law Center, which has been closely monitoring the case and its aftermath. “But it’s not as though everyone is rolling up their tents and going home.”

 

See our roundup of other great reads on gender and sexuality discrimination in the workplace. And let us know what gender and sexuality issues you think deserve more coverage.

CAIRO--The screens went black around 9pm. It was night of July 3, and Egypt's military chief, General Abdel-Fattah El-Sisi, announced on state television that President Mohamed Morsi had been removed from power following huge protests. Then five Islamist-leaning television stations were immediately taken off the air. As Sisi spoke, police vehicles converged on Media Production City, the desert complex outside...

Bill Black is always worth reading and his column flagging a line in a Wall Street Journal editorial is no exception. Naturally, the entire WSJ piece deserves a closer look, as well. The WSJ argues that government came out ahead in the power race with banks after the financial crisis and it backs up that obtuse argument with examples like...

The internet has largely weighed in on Popular Science's sudden decision to shut off its comments section earlier this week. The responses have been, for the most part, positive, as battle-weary writers leap to the defense of a publication looking to preserve the integrity of its work from biased trolls. (Except for Mathew Ingram, who devoted a PaidContent post and...

by Minhee Cho and Christie Thompson

Last week, ProPublica and This American Life published a blockbuster report revealing the inherit risks of acetaminophen, the active ingredient in Tylenol. Each year, acetaminophen overdose sends as many as 78,000 Americans to the emergency room and 150 people die from accidentally overdosing on the pain reliever “hospitals use most.”

As part of our investigation, we created five consumer resources to help you become more aware of acetaminophen toxicity, which the FDA now calls a “persistent, important public health problem.”

 

1. Drug Lookup

Many common over-the-counter medicines contain acetaminophen, including Theraflu and Nyquil. This tool allows you to easily search for the drugs in your medicine cabinet and see just how much acetaminophen you’re taking.

 

2. Dose-o-Meter

Mixing Tylenol and other medications can quickly put you over the recommended daily dose, and in danger of damaging your liver. Select a group of medicines to see whether you’re still within a safe dosage of acetaminophen. 

 

3. Symptoms of Acetaminophen Poisoning

Overdosing on painkillers can begin with nausea and, in extreme cases, end in death. Use our chart to see the phases of acetaminophen poisoning and its impact on your body.

 

4. Discussion: Acetaminophen Risks, Safety Measures

Still have questions? Join our live discussion on our investigation this Thursday at 1 pm ET. Our reporter T. Christian Miller will be joined by liver disease specialist Dr. William Lee and pharmaceutical marketing expert PeterMax Miller, to discuss how the FDA and drug company McNeil fought or delayed measures to protect consumers. Weigh in to the chat on our site, or tweet your questions with the hashtag #AcetaChat.

 

5. Share Your Story

Have you or someone you know suffered from acetaminophen poisoning? Help continue our reporting, and share your story here. And to tell the FDA about your experience, you can fill out a consumer report form.

BuzzFeed's Matt Zeitlin dives deep into Chrystia Freeland's role in the Reuters Next failure. Granted, this piece has a distinct rats-fleeing-the-ship feel to it and there's not a single on-the-record source in it, but Freeland didn't help the situation, either, telling Zeitlin she wouldn't talk to BuzzFeed unless it was to a top-level editor. Perhaps she's spent a wee bit...

Here's a story of what happens when busy reporters have only one main source for a story--and that source is a press release. Back in 2011, members of the Motion Picture Association of America filed a suit against Hotfile, a cyberlocker service that lets users upload files and creates a link for each one. It was a popular service, and...

by Jannis Brühl

In the wake of a recent Russian-U.S. deal averting American airstrikes, Syria has begun to answer questions about its chemical weapons stockpile. One thing inspectors don’t have the mandate to ask is where those weapons came from in the first place. But evidence already out there suggests Syria got crucial help from Moscow and Western European companies.

When Secretary of Defense Chuck Hagel was asked recently about the origins of Syria’s chemical weapons, he said, “Well, the Russians supply them.“ Hagel’s spokesman George Little quickly walked back that statement, saying Hagel was simply referring to Syria’s conventional weapons. Syria’s  chemical weapons program, Little explained, is “largely indigenous."

But declassified intelligence documents suggest Hagel, while mistakenly suggesting the support was ongoing, was at least pointing his finger in the right direction.

A Special National Intelligence Estimate dated Sept. 15, 1983, lists Syria as a “major recipient of Soviet CW [Chemical Weapons] assistance.” Both “Czechoslovakia and the Soviet Union provided the chemical agents, delivery systems, and training that flowed to Syria.” “As long as this support is forthcoming,” the 1983 document continues,” there is no need for Syria to develop an indigenous capability to produce CW agents or materiel, and none has been identified.”

Soviet support was also mentioned, though with less details, in another intelligence estimate dated Feb. 2, 1982. That report muses about the U.S.S.R.’s motivation for exporting chemical weapons to Syria and other countries. The Kremlin saw gas as useful for allies fighting against insurgencies: For the countries that had actually used it in combat – Kampuchea, Laos, Afghanistan and Yemen - the authors conclude that the Soviet Union saw it as a way of “breaking the will and resistance of stubborn guerrilla forces operating from relatively inaccessible protected sanctuaries.”

The 1982 report goes on to say: “The Soviets probably reasoned that attainment of these objectives – as quickly and cheap as possible – justified use of chemical weapons and outweighed a small risk of exposure and international condemnation.” Last week, German newspaper Süddeutsche Zeitung reported that intelligence sources in the country are convinced blueprints for four of the five Syrian poison gas plants came from Moscow.

Evidence gathered from what we now know was a sarin attack last month is also suggestive. According to an investigation by Human Rights Watch, one of the weapons used in the attack was “a Soviet-produced 140mm rocket.” Meanwhile, the UN’s own report shows a picture of Cyrillic letters on the remnants of the rocket.

It’s impossible to know the exact extent of Soviet and Russian help. U.S. intelligence was not particularly focused on the Syrian program, says Gary Crocker, a proliferation specialist at the State Department’s Bureau of Intelligence and Research in the 1970s and 1980s. Most analysts did not know much about its program: “Detailed information on the Syrian program was only accessible to very high level intelligence officials,” Crocker said.

There are also indications that the Soviets grew increasingly uneasy with Syria’s ability to deliver the deadly gas by long-range missile. Concerned about Syria’s buildup, the head of the Soviet chemical warfare corps, General Vladimir Pikalov,flew to Syria in 1988. According to reports from the time, he decided against supplying the country with SS-23 missiles, which would have been able to deliver poison gas deep into Israel.

But the Soviets don’t appear to be the only ones who provided some help.

“Soviets provided the initial setup, then the Syrians became quite proficient at it. Later, German companies came in,” Crocker said.

As then- CIA director William Webster said in Senate testimony back in 1989: “West European firms were instrumental in supplying the required precursor chemicals and equipment.” Asked why the companies did it, Webster answered: “Some, of course, are unwitting of the ultimate destination of the products they supply, others are not. In the latter case, I can only surmise that greed is the explanation.”

Indeed, Syria received precursor chemicals from the West until well into the last decade. Last week, the German government acknowledged that between 2002 and 2006, it had approved  the export to Syria of more than 100 tons of so-called dual-use chemicals. Among the substances were hydrogen fluoride, which can be used to make Teflon,  and also sarin. The exports were allowed under the condition that Syria would only use them for civilian purposes. The British government also recently acknowledged exports of dual-use chemicals to Syria.

Both the British and German governments said there’s no evidence the chemicals were used to make weapons.

It’s not the first time Germany may have turned a blind eye to potentially dangerous trade. In the 1980s, for instance, German and French companies were crucial in building poison gas plants in Iraq and Libya . Stricter export controls in Europe were only installed after a web of companies that supplied the chemical weapons programs in the Middle East was exposed in the late 1980s. The New York Times embarrassed the German government by revealing the connection between German company Imhausen-Chemie and a Libyan poison gas plant in Rabta. (Times columnist William Safire German later called the plant “ Auschwitz-in-the-sand.”)

In the following years, German authorities indicted more than 150 managers of companies involved in Saddam Hussein’s program, which he had used to kill thousands of Kurds. According to one report, from the late ‘90s, more than half of the proceedings were stopped. Most of those that went to trial were acquitted or paid fines, a handful received jail time.

Just how deeply were German companies involved in Syria’s program? We may never know.  A long-ago proposal by the German Green party to install a fact-finding commission to comprehensively investigate the web of German companies supplying Middle Eastern states – and government knowledge of these exports - was voted down by all other parties in parliament.

by Stephen Engelberg and Robin Fields

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Over the past several days, we’ve highlighted the deaths and injuries caused by overdosing on acetaminophen, the active ingredient in Tylenol. We’ve pointed out that the toll does not have to be so high.

Today, we share some of the more prominent proposals to reduce the harm from one of America’s most widely used pain relievers.

The ideas come from a variety of sources, including scientists, the U.S. Food and Drug Administration, regulators in other countries, industry officials and McNeil Consumer Healthcare, the Johnson & Johnson unit that makes Tylenol, the best-selling acetaminophen brand.

From 2001 to 2010, more than 1,500 Americans died from accidentally taking too much acetaminophen, according to data from the U.S. Centers for Disease Control and Prevention. An additional 1,400 people intentionally overdosed to commit suicide or died under circumstances in which their intent was unclear.

1. Drop the Daily Total

FDA advisors — prominent doctors, researchers and safety advocates — suggested in 2009 that the agency lower the total maximum daily dose of acetaminophen from its current limit of 4 grams per day, equal to eight extra strength acetaminophen pills. McNeil itself adopted the suggestion for its Extra Strength Tylenol product and now recommends a maximum of 3 grams, or six pills, per day unless otherwise directed by a doctor. (The company hasn’t applied this to all its products, nor to Extra Strength Tylenol worldwide.)

WHO COULD DO THIS?  Either the FDA or the companies that manufacture acetaminophen could change dosing instructions.

2.One Concentration and Dosing Instructions for Kids’ Products

After confusion between different concentrations of pediatric acetaminophen led to child deaths, the drug industry in 2011 voluntarily agreed to market only a single concentration in the United States. For years, most recently in August 2013, the industry has also asked the FDA to allow dosing instructions on acetaminophen labels for kids under 2 to help prevent the lethal confusion. FDA advisory panels have told the FDA to do the same thing, most recently in 2011. So far, the FDA has not required a single concentration, nor has the agency ruled on whether to require the dosing instructions.

WHO COULD DO THIS? The FDA.

3.Take Acetaminophen out of Prescription Pain Killers

Vicodin and Percocet are a mixture of powerful pain killing opioids and less potent acetaminophen. Just why these medications are combined is controversial – some people argue that adding acetaminophen to an addictive drug only increases the risk of liver poisoning, with little additional pain-relief benefit. But, because of a quirk in how opioid drugs are regulated, removing acetaminophen might result in drugs such as Vicodin and Percocet becoming more restricted medicines – harder to prescribe and harder to get. By a small margin, FDA advisors recommended removing acetaminophen from prescription opioids in 2009. The agency has declined to take that step, but in 2011 limited the amount of acetaminophen that a single pill can contain to 325 mg. It also put a so-called black box warning on the label stating that an overdose can cause death.

WHO COULD DO THIS? The FDA and the Drug Enforcement Administration, which plays a large role in regulating addictive medicines, would have to sign off.

4.Restrict Pill Quantities

Regulators in the United Kingdom, Germany, Australia and elsewhere all restrict the purchase of acetaminophen in some way. They limit how many pills consumers can buy at one time, where they can buy them, how many pills can be put in one package, or a combination of such measures. A recent U.K. study found that restricting purchases resulted in a significant drop in suicides with acetaminophen. In 2009, however, FDA advisors recommended against such restrictions, and it is unclear whether the agency has the legal authority to impose them.

WHO COULD DO THIS? Both the FDA and Congress might need to act.

5.Dose Up Slowly

In 2009, McNeil proposed adding language to its Extra Strength Tylenol packages to instruct consumers to take only one pill at a time and increase to two only if they don’t get pain relief – a common medical practice known as taking the lowest effective dose. McNeil itself features such instructions on bottles of Motrin, its brand for the pain reliever ibuprofen. The FDA has not required it for acetaminophen.

WHO COULD DO THIS? Either the manufacturers or the FDA could make this change.

6.Limit Pill Strength

The FDA has required that prescription medicines contain no more than 325 mg of acetaminophen per pill to limit the risk of liver damage; drug companies must implement this change by January 2014. The agency has not, however, mandated that over-the-counter medications have the same limit, even though most acetaminophen is sold over the counter. The result? Without a prescription you can buy pills that contain double the amount of acetaminophen than those you could purchase under a doctor’s supervision.

WHO COULD DO THIS? The FDA or the drug manufacturers.

7.Require Side Effect Warnings in Advertisements for OTC Drugs

As far back as 1977, a panel of experts warned that the government needed to crack down on marketing that extolled the benefits of over-the-counter pain relievers without revealing the risks. By a twist of bureaucratic history, the Federal Trade Commission regulates advertising for over-the-counter drugs, not the FDA. That’s why you see those long announcements after prescription drug ads but not after commercials for, say, Tylenol or Alleve, another non-prescription pain killer.

WHO CAN DO THIS?  Congress could pass a law to require ads for over-the-counter drugs to disclose risks, or drug companies could take this step voluntarily.

8.Acetaminophen Icon

Acetaminophen is in more than 600 medicines, by the FDA’s count. Regulators and drug makers worry that consumers can unwittingly overdose by taking two medicines with acetaminophen – for example, Tylenol and NyQuil. Thirty-five percent of Americans wrongly think that combination is safe, according to a nationwide poll commissioned by ProPublica and This American Life and conducted by Princeton Survey Research Associates International. One proposal aimed at reducing double-dipping is to create a universal icon to slap on the front of every product with acetaminophen, a bit like a “caution” sign.

WHO COULD DO THIS?  McNeil, other acetaminophen makers and the FDA have been considering this idea for more than a decade without taking action. Last month McNeil announced it would take a step in this direction: adding a red-letter warning to its bottle caps reading, “Contains Acetaminophen” and “Always Read the Label.”

9.Grab Consumers’ Attention by Warning Them an Overdose Can Kill

In almost all overdose cases, patients are at least partly responsible. After all, they took too much of the drug – and one reason may be that people often don’t pay much attention to drug labels. But maybe they would if the label warned, prominently, that an overdose could kill. In fact, Canadian regulators require over-the-counter acetaminophen to warn about its lethal potential.  And the FDA already requires prescription medicines that contain acetaminophen to warn that taking too much can lead to “death.” But it requires no fatality warning on over-the-counter acetaminophen, even though most of the drug is sold that way.

WHO COULD DO THIS? The FDA or the manufacturers.

Not long ago, freelance health writer Debra Gordon sent out an SOS on a listserv for health reporters. Gordon was writing a consumer piece walking readers through the process of signing up for the new health insurance exchanges. She quickly realized that neither shopping for insurance nor writing about the shopping process was easy. "I spent about four hours just...