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It seemed like a perfect case for Amlong & Amlong, the kind for which the husband-and-wife plaintiff employment law firm in Fort Lauderdale, Fla., have become renowned throughout the state since they began focusing on employment discrimination and civil rights law in the mid-1980s. A woman who bused tables at a Denny’s restaurant in Miami claimed she was sexually harassed and raped by two managers. The charges were horrific. Floride Norelus complained that she was raped with a hairbrush in the walk-in freezer and forced to perform oral sex on the managers every day for nearly a year in the men’s room of the diner. But there was a problem with Norelus’ federal lawsuit, which accused Denny’s, its parent company, the franchisee and the two managers of Title VII sexual harassment and brought common law tort claims for battery and intentional infliction of emotional distress, among other tort claims. In the view of federal Judge Joan Lenard of the U.S. District Court for the Southern District of Florida, who presided over the case, Norelus’ story was full of inconsistencies. From the judge’s perspective, what was particularly egregious was that the attorneys at Amlong & Amlong, particularly Karen Amlong, had plenty of evidence that Norelus’ allegations were baseless, yet they proceeded with the lawsuit anyway. In a previously unreported and highly unusual decision in March of last year, Lenard ordered sanctions under 28 USC 1927 against Karen and Bill Amlong and their law firm. She wrote that they demonstrated “bad faith and willful disregard for the judicial process.” For their part, the Amlongs insisted at several evidentiary hearings before U.S. Magistrate Judge Ted Bandstra, of the Southern District of Florida, and in court documents that, while parts of the case were indeed troubling, they believed their client. They noted that the client had passed two polygraph tests administered by noted expert George Slattery. But last December, U.S. Magistrate Judge John O’Sullivan, also of the Southern District, recommended that the Amlong firm be ordered to pay counsel for the defendants in the Denny’s case legal fees that could top $500,000, including interest. Lenard has yet to rule on that recommendation. The defense lawyers in the case are Jon Stage, a partner in Akerman Senterfitt’s Fort Lauderdale office; Averill Marcus, a Miami sole practitioner; and Dale L. Friedman, a partner at Conroy Simberg Ganon Krevans & Abel in Hollywood, Fla. The Amlongs declined to comment on the record about the matter. Karen Amlong would say only that “numerous respected plaintiff lawyers have been hit with substantial sanctions, both here and nationally.” SHOCK WAVES Lenard’s order and O’Sullivan’s recommendation have sent shock waves throughout the South Florida legal community. Employment lawyers call the sanction the stiffest they’ve ever seen imposed on a law firm, and express astonishment that the action was taken against lawyers of the Amlongs’ stature. They say such a sanction would bankrupt most small law firms. “I’ve never seen sanctions this high,” says Robert Kofman, head of the labor department at Stearns Weaver Miller Weissler Alhadeff & Sitterson in Miami, a defense attorney. “The Amlongs are very good lawyers, the most prominent plaintiffs’ lawyers you can find in the state of Florida. I can’t explain what happened here. This is a very, very serious situation for the plaintiffs’ bar.” News of the sanction against the Amlongs comes on the heels of another South Florida federal judge ordering sanctions against a prominent Fort Lauderdale employment lawyer three weeks ago. In that case, federal Judge Donald M. Middlebrooks of the U.S. District Court for the Southern District of Florida slapped Charles Whitelock, managing partner of Whitelock & Associates of Fort Lauderdale, with a Rule 11 sanction, based on the Federal Rules of Civil Procedure, for filing a “baseless” employment discrimination and retaliation suit. Whitelock was hit with a $8,800 penalty after Middlebrooks ruled that he ignored “objective evidence casting serious [if not fatal] doubt” on his client’s allegations. Last week, however, Middlebrooks asked the defense attorney who requested the Rule 11 sanction to respond to new evidence Whitelock has presented in support of his request for reconsideration of the sanctions order. Employment cases have become the most common type of civil lawsuits filed in federal court, and federal judges are growing increasingly impatient with the glut of cases crowding their dockets, plaintiff employment attorneys say. While sanctions remain rare, judges are becoming more willing to consider them against plaintiffs’ lawyers when they see a case as frivolous, these observers contend. That is prompting some plaintiffs’ lawyers to file their civil rights suits in state court. It’s prompting others to get out of the practice of civil rights and employment law entirely. “There’s more skepticism on the part of the judiciary,” says Bob Weisberg, a sole employment and civil rights plaintiffs’ practitioner in South Miami. “Judges are getting very experienced at this and can spot something egregious right away.” “The whole point of the Civil Rights Act was to get private attorneys to prosecute civil rights cases,” says Miami solo Ira Kurzban. “But I don’t do civil rights cases any more because judges are gutting [the law].” Defense lawyers are using threats of sanctions as a weapon to get plaintiffs’ lawyers to back off, plaintiffs’ lawyers complain. Jon Stage of Akerman Senterfitt effectively used the threat of sanctions against two plaintiffs’ lawyers, including Ellis S. Rubin of Miami, in another discrimination suit against Denny’s in 1999. In that case, two minority customers alleged that a Denny’s in Cutler Ridge, Fla., denied them service. Stage issued his threat after discovering a security videotape that he contended disproved the plaintiffs’ allegation. Rubin promptly withdrew from the case. The Amlongs are two of the most prominent employment plaintiffs’ attorneys in Florida. Bill Amlong successfully argued a landmark employment discrimination case before the U.S. Supreme Court in March 1998. In that case, Faragher v. the City of Boca Raton, the high court held that an employer is liable for sexual harassment charges directed against a supervisor in cases of tangible job detriment. But the Amlongs aren’t the only prominent lawyers to be sanctioned. Neil Chonin, a respected civil rights lawyer, was sanctioned by federal Judge Kenneth Ryskamp of the U.S. District Court for the Southern District of Florida in 1998 during a racial discrimination suit he brought against Subway, the sandwich chain. Chonin and co-counsel Marilyn Sher were sanctioned to the tune of $187,000. The Miami solo calls the experience “the worst thing that happened to me in my 39 years of practicing law. It was a nightmare.” “Defense lawyers are trying to wipe us out,” he says. “They are targeting prominent civil rights lawyers.” SPECIAL INTEREST IN DENNY’S Judge Lenard’s sanction order against the Amlongs grew out of a lawsuit filed in Miami federal court by Norelus, a Haitian immigrant, in December 1994. Besides Denny’s, the named defendants were parent company T.W. Services Inc., franchisee Meos Corp., and Asif Jawaid and Raheel Hameed, the two managers accused of wrongdoing. Norelus sought damages for common law battery, invasion of privacy, false imprisonment, intentional and negligent training, retention and supervision. She also complained of unequal pay. Norelus’ original lawyers were Joseph Chambrot and Debra Valladares, sole practitioners in Miami. The two were inexperienced in employment and civil rights law and knew that Karen Amlong was handling another sexual harassment case against Denny’s. About five months into the case, the Amlong firm took over. Karen Amlong and Christopher Sharp, then an associate with her firm, filed an amended complaint on July 27, 1995, as well as the second amended complaint. While Karen Amlong served as lead counsel, some pleadings were filed by her husband, Bill. Karen Amlong had a special interest in pursuing Denny’s, she later told Magistrate Judge Bandstra at a 1997 evidentiary hearing on the sanction issue. Amlong had settled a previous case against Denny’s the night before trial and was not altogether happy with the outcome. “Quite frankly, I wanted to chew on Denny’s a little bit more,” she admitted to Bandstra. “I felt that they had some employment practices that really bothered me, from my perspective, where I was coming from as an employee advocate and, particularly, a woman advocate.” Norelus was first deposed in August of 1995, and again was questioned in January and February of 1996. Major discrepancies emerged in the various accounts Norelus gave of key events. For instance, she first claimed that oral, vaginal and anal intercourse occurred in a walk-in freezer, then later stated that “no sex occurred in the walk-in cooler or freezer.” After a deposition, attorneys have the right to file a corrections and clarifications document, known as an errata sheet, to amend their clients’ testimony. Usually, say lawyers, the errata sheet is a few pages long. On June 14, 1996, the Amlongs filed an errata sheet 63 pages long, including 868 changes in Norelus’ sworn testimony. “That was the longest errata sheet I’ve ever seen,” Stage says. “I couldn’t believe it.” Some of the corrections were minor and irrelevant to the case. But others went to the heart of the lawsuit and concerned what happened during an alleged attack by Asif. For example, Norelus, who claimed she was forcibly taken to the homes of Asif and Hameed and then raped, was repeatedly asked whether she remembered anything about their cars or the routes they took to their homes. During deposition, she said she did not. In the errata sheet, however, she provided great detail about their cars and the exact route Hameed took to his house. Lenard found this to be a powerful reason to doubt Norelus’ deposition testimony. During the evidentiary hearings on the matter of sanctions, Karen Amlong argued that the numerous mistakes and extensive corrections were due to the fact that their client primarily spoke Creole and that her English was poor. They noted that she indicated more than 500 times during the depositions that she didn’t understand a question. But Lenard was not persuaded, writing: “The court finds that the errata sheet was used to bolster plaintiff’s case and recitation of facts as alleged in the complaints, not simply to correct inaccuracies or mistakes.” “From the outset,” Lenard concluded, “plaintiff’s testimony and conduct called into question the validity of her claims. Plaintiff not only forgot key details set forth in the complaints but provided several inconsistent versions of the events or outright falsehoods.” Lenard criticized Karen Amlong for failing to interview any of the witnesses Norelus listed in her complaint before filing the action or during discovery. When they eventually were deposed, Lenard wrote, “none of these witnesses knew anything about the allegations or could lend support to the claims.” In fact, when Amlong agreed to become lead counsel, no lawyer at the Amlongs’ firm interviewed Norelus herself. At the evidentiary hearing, Valladares testified that before filing the lawsuit, she spoke with Norelus, her two brothers and David Hill, a manager at Denny’s. But she did not speak with any of the people Norelus claimed saw her being dragged into the men’s room and freezer by the two managers. When the witnesses finally were deposed, however, not only did they not support Norelus’ allegations, but they stated that Norelus joked about having sex at work, Lenard wrote. At the conclusion of the depositions, Lenard said, it became clear to the Amlongs that their client’s claims “lacked credibility.” The errata sheet, Lenard contended, was simply Karen Amlong’s effort to “repair the damage.” On Aug. 1, 1996, the attorneys for the defendants filed a motion to dismiss and requested sanctions against the Amlong firm. On Aug. 26, 1996, Lenard denied the motion to dismiss and ordered the deposition reopened at Norelus’ expense. She also ordered the plaintiff to file an appendix identifying the errata changes and the reasons for them, and ordered that the plaintiff or her attorneys pay the defense costs associated with the reopened deposition within 10 days. But Norelus never filed the appendix or paid the fees. In her objection, Karen Amlong stated that Norelus had no money to pay and that not filing the appendix was her way of getting the case dismissed. But Lenard wasn’t pleased. She dismissed the case on Dec. 11, 1996, citing the lawyers’ “willful contempt for the judicial process.” The defense attorneys, who had put in several thousand of hours on the case, were unwilling to let the matter drop so readily. Contending that plaintiff’s counsel had failed to conduct a proper factual investigation prior to filing the complaint and had ignored evidence demonstrating that the plaintiff’s claims were baseless, defense counsel on Jan. 10, 1997, filed motions to recover attorneys’ fees from the Amlongs. The fees dated back three years and included the bills for lawyers from three law firms — Stage, Averill Marcus for Meos Corp. and Dale Friedman for the two Denny’s managers. On Jan. 24, 1997, Lenard referred the motions for attorneys’ fees to Bandstra. After conducting several evidentiary hearings, Bandstra determined in late 1997 that the plaintiff’s case “always lacked credible evidence” and was frivolous. However, he found no evidence of “willful abuse of the judicial process” or “reckless disregard of duty” by the Amlongs that would justify sanctions. Therefore he ruled that Norelus — but not the Amlongs — should pay the defense attorneys’ fees. Lenard disagreed. In a harshly worded opinion on March 21, 2000, she said Karen Amlong’s behavior was “vexatious and contrary.” “Attorneys are not only responsible for investigating the claims of a lawsuit prior to filing, but have a continuing obligation throughout the pendency of the action,” she stated. “If evidence becomes known that is contrary to the asserted claim or if it becomes clear that the claim is baseless, attorneys have an obligation to seek voluntary dismissal.” Lenard placed the blame squarely on Karen Amlong, saying that the other lawyers had little or no experience in workplace harassment cases. She chastised both Karen and Bill Amlong for failing to read a single deposition of a single witness during discovery and for using the errata sheet to “provide factual support to an otherwise meritless case.” “The record demonstrates that reasonable investigation, once counsel was aware of the ‘inconsistencies’ of the deposition, would have made any reasonable attorney aware of the frivolity of the case,” Lenard wrote. She ordered the Amlongs and their firm to pay all costs and attorneys’ fees associated with reopening the deposition — with back interest of 10 percent annually starting from October of 1996. After hearing testimony on legal fees, Magistrate O’Sullivan ruled last December that Stage should recover $160,490, based on 1,220 hours of attorney and paralegal time; Marcus, $109,254 for 668 hours; and Friedman, $114,580 for 974 hours. That does not include the interest, which could put the total past the half-million dollar mark, the Amlongs say. Lenard, who was busy until recently with a months-long Cuban spy trial, has yet to make a final ruling on the fees. Meanwhile, the sanction ruling against the Amlongs has resonated throughout the South Florida legal community. At Gunster Yoakley in West Palm Beach, which conducts a sizable practice defending employers against employment suits, partner Bob Turk has circulated it to all the employment lawyers in the firm. “This is a caution for every attorney,” he says. “We’ve reinforced that you have to do due diligence.” Some plaintiffs’ lawyers have gotten the message. On July 20, in a speech at an ACLU conference in Key West, West Palm Beach sole practitioner James K. Green warned civil rights attorneys to take greater precautions to avoid sanctions. Topping his list of advice: “Be wary of clients or claims that sound too good to be true.”

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