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When Jon K. Stage heard that Advantica Restaurant Group Inc., owner of the much-maligned Denny’s restaurant chain, was going to be sued yet again for allegedly denying service to minority customers, one of the first things he wanted to know was whether there was a tape. Much like the fan who throws up his hands in frustration when instant replay shows the umpire made a bad call, Stage — after obtaining such a tape from a security camera — saw that what the plaintiffs alleged to have happened on Oct. 27 at the Denny’s in Cutler Ridge, Fla., did not. But unlike the frustrated fan, Stage did something about it. As outside counsel to Spartanburg, S.C.’s Advantica, Stage, a partner in the Fort Lauderdale, Fla., office of Akerman, Senterfitt & Eidson, used the tape as a sword, threatening sanctions to push two plaintiffs’ lawyers off the case and, on Aug. 2, to get the case dismissed. Flagler v. Advantica, No. 99-3107. Stage’s blitzkrieg approach is an example of how Denny’s, hobbled by years of discrimination cases filed by minority customers, is now using aggressive litigation tactics to defend its corporate image against opportunistic plaintiffs. ONE HOUR OR 10 MINUTES? Miami residents Ronald Flagler and Janet P. Jones, who are black, alleged in a lawsuit filed on Nov. 16 in U.S. District Court for the Southern District of Florida that, after being seated on the morning of Oct. 27 in a Dade County, Fla., Denny’s, they were ignored for nearly an hour while white customers were seated and served. First represented by Miami attorney Ellis S. Rubin, the plaintiffs sought unspecified damages for alleged discrimination in a public accommodation. The complaint noted previous similar suits against Denny’s, concluding that the similar cases indicated a “willful disregard of the rights of African-Americans.” Alerted to the coming lawsuit, Stage said he obtained and reviewed the tape from the camera installed over the restaurant’s cash register. It revealed, he said, that the plaintiffs were in the restaurant for only 10 minutes before leaving. It also showed that several black and Hispanic patrons were seated during the short period that the plaintiffs were there, he said. Flagler and Jones alleged that no black patrons were served while they were seated in the Denny’s. Stage waited until the plaintiffs were deposed and had restated the charges leveled in the original complaint. Then he pounced, providing the plaintiffs’ attorney with a copy of the tape. “After further investigation, we decided to withdraw from the case since we didn’t want to violate Florida Bar rules or Rule 11,” said Rubin, referring to the federal rule penalizing lawyers for bringing frivolous litigation. The plaintiffs, however, retained another lawyer, Miami’s Oscar Syger, who also dropped the case when confronted by the videotape and threats of sanctions, said Stage. Syger did not return calls seeking comment. “We’ve used security film where we’ve represented several people accused of shoplifting or being brutalized by security guards,” said Rubin. “It either works for us or it doesn’t, but every time, it’s very critical” to the outcome. In 1994, Denny’s settled a $46 million class action with hundreds of black customers who had alleged that they were refused service at the chain’s restaurants. Although the chain of 1,800 restaurants contends that it has since given diversity training to its employees, increased black-owned franchises, and complied with a federal civil rights monitor, it is still the subject of a high number of public-accommodation lawsuits. Stage brought the Denny’s account with him to Akerman Senterfitt after leaving Holland & Knight in the early 1990s. Since then, he has handled four public-accommodation lawsuits against his client. Two, including the Flagler case, have been dismissed, and one ended in summary judgment for Denny’s. The fourth, brought last year, involved nine Florida corrections officers who were seeking $10,000 in damages each. Although they won their suit, the judge awarded each plaintiff only $300, noted Stage, attributing their treatment to a “rogue manager.” “We had a security camera in that case, too, but by the time we got the tape, it had already been recorded over,” Stage said. Advantica General Counsel Rhonda Parish said that her company has taken a dual approach to bias claims by pre-investigating every claim made, but also by vigorously defending itself when a claim is deemed frivolous. “They might be thinking that you’re an easy target, that perhaps you will settle the case to make it go away,” she said. “If we determine it’s a frivolous lawsuit, we will fight it tooth and toenail.”

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