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Review follow-up: Antico Pizza sues Fuoco di Napoli and details on Liberato’s departure

AnticoVFuocoLast week, Eli at the local restaurant news and business blog Tommorrow’s News Today broke a story revealing that Antico Holdings, LLC and Antico Foods, LLC had filed a lawsuit accusing members of the McDowell Family, owners of Fuoco di Napoli, of trademark infringement.

My review of Fuoco di Napoli ran yesterday on the Food & More blog, and appears in today’s issue of the AJC in the Go Guide section. Our reviews are sometimes written as far as two weeks in advance before publication, and obviously, much has come to light since my visits to the Neapolitan pizzeria in Buckhead.

The night of my deadline, I came across a reference to the suit, filed on 4/4/12. While we made the decision to leave the suit out of the review, it is still newsworthy, and something that we felt obligated to investigate and report on.

Since filing the review, I obtained copies of the initial complaint filed by Antico. I spoke with the owners of both restaurants, and can now shed more light on the details of the suit and the last few tumultuous months at Fuoco di Napoli.

The 23 page complaint filed by Antico includes numerous allegations against the owners of Fuoco di Napoli spread across six counts, mostly centered on trademark infringement and alleging that Fuoco di Napoli intentionally misled consumers to believe there was an affiliation between the restaurants.

Before getting into the nitty-gritty, I can’t resist mentioning that my article in our dining guide naming Antico as the “Best Italian Style Pizza” in Atlanta was submitted as Exhibit B and the AJC’s Bob Townsend’s First Look article on Fuoco is filed as Exhibit E. You know you have made it when you’re mentioned in other people’s lawsuits without knowing about it.

Here are some of the key points from the complaint:

  • D.H. McDowell Family LLLP owned a 20% stake in Antico Holdings, during which time, they had “access to and knowledge of the Antico Trade Dress and Trade Secrets used in connection with the operation of Antico Pizza.” The McDowell Family sold their share of Antico Holdings on May 6, 2011, for which they received $240,000.
  • “On or about July 2011, Dennis H. McDowell, Jackie McDowell, and Lori G. McDowell formed Fuoco.”
  • “Dino McDowell, manager of Fuoco, previously worked for and was trained in the pizza industry by Di Palma at Antico Pizza”
  • “Defendants have intentionally knocked-off Antico’s trade dress including the wood-burning oven, rustic communal wooden styled tables, the strategically placed wooden boxes and crates throughout the store containing ingredients and products imported from Italy used as decoration and extra eating space for customers, the open-styled kitchen for customers to view the pizza chef’s preparation of the pizzas for baking and the playing of similar music throughout the restaurant.”
  • “In an effort to adopt and replicate Antico Pizza, Fuoco also hired one of Antico Pizza’s kitchen employees who had knowledge of and access to Antico Pizza’s concepts, recipes, pizza baking procedures and operations.”
  • “Defendants have been misleading the public by informing customers and potential customers that both restaurants are owned by the same individuals and engaging in various marketing strategies designating Fuoco as an affiliate of Antico Pizza.”

I spoke with Giovanni Di Palma, owner of Antico, about the suit and he explained that the final allegation listed above was the real impetus for the lawsuit. Di Palma stated that “We had many patrons, friends and vendors inform us that we opened a new place in Buckhead, which was news to me.”

Di Palma alleges that when Fuoco first opened, the management intentionally misled consumers to believe that the two restaurants were officially affiliated. He claims to have over 50 depositions that back the allegation that the owners of Fuoco directly told consumers that the two restaurants were connected. Di Palma stated that the fact that Fuoco simply opened a similar style restaurant didn’t result in the suit, but that Fuoco intentionally used Antico’s name to drum up business, and in the process, confused and misled many customers.

“I personally have no fear of competition whatsoever,” Di Palma said, “I embrace competition and I think it is healthy for the marketplace, when it is done fairly.”

In a subsequent conversation with Di Palma, he also informed me that another sticking point in the suit, and one of the demands they will be making, is that Fuoco removes the Fuoco di Napoli pizza from their menu because he believes that it is a carbon copy of Antico’s Diavola pizza, Giovanni’s original creation.

When reached for comment on the suit, Fuoco partner Lori McDowell directed me to their attorney, Stephen Weizenecker of Lewis Brisbois Bisgaard & Smith LLP. I spoke with Weizenecker by phone, and he stated that “We intend to vigorously defend these claims and bring it to what we think with be the natural conclusion.” He continues, “It is obviously my client’s contention that their restaurant is completely different in concept, theme, design, and everything from Antico.”

Update on Enrico Liberato:

In addition to the troubles with Antico, Fuoco di Napoli recently lost their star pizzaiolo, Enrico Liberato. Days after rumors circulated that was no longer at Fuoco, Creative Loafing’s Brad Kaplan reported that a booking record from 3/3/12 showed that Liberato had been arrested, and his charges included aggravated assault, as well as an immigration charge. Rumors of his deportation quickly followed. While researching my review, the owners of Fuoco declined to comment on the specifics of Liberato’s departure, but confirmed that he was no longer with the restaurant.

During the course of the investigation of the allegations by Antico, I also obtained a copy of the police report for the night of Liberato’s arrest at Fuoco di Napoli. Though unrelated to the suit, we feel that this is also relevant for our readers.

The report shows that on the night of March 2, 2012 at 10:33 p.m., the police were dispatched to Fuoco di Napoli on a dispute call. Upon arrival, the owner alleged that, while in a dispute with another employee, Liberato pulled a knife from a drawer and “waived the knife in the air and began moving toward the victim. The victim then grabbed a 6 ft. long pizza peel in order to defend himself.” The report goes on to say that “while inventorying the suspects’ vehicle, [the officer] smelt the odor of marijuana”, and then found less than an ounce of marijuana in the center console.

At this time, the fate of Liberato is not entirely clear, though Weizenecker (who does not represent Liberato) stated that he is currently being held in a facility in Stewart, Ga. He also stated that his understanding of Liberato’s current situation is that it has more to do with improperly filed immigration paperwork than the charges stemming from the altercation on 3/2.

In one of our conversations, Giovanni Di Palma informed me that I was mistaken when I stated in my review of Fuoco that “It is obvious that Liberato passed on his recipes and techniques to the team running the kitchen now.” He clarified that the recipes at Antico are entirely his own, and that Liberato was never instructed in his recipes end-to-end.

“When I hire a skilled kitchen position at Antico, that person is only trained to master one position.” Di Palma continues, “In this case Enrico was solely a Fornaio (oven worker). He was terminated during our training period due to inconsistency as a Fornaio, not meeting the required level of quality standards at Antico.”

Given that this suit was only filed weeks ago, and that Antico has demanded a jury trial for this case, we won’t know the outcome for some time. The AJC Food & More blog plans to keep tabs on the progression of the suit, as well as Liberato’s status, and will update our readers are more information becomes available.

- Jon Watson, Food & More blog

55 comments Add your comment

jimmy

April 20th, 2012
7:44 am

Great research Jon, thanks.

jonnymack

April 20th, 2012
7:55 am

Sounds like the plot pitch to A&E’s latest reality show “Pizza Wars”

Hungry Gringo

April 20th, 2012
8:35 am

Congratulations on being included in the lawsuit evidence lol!

Soul Glow

April 20th, 2012
8:48 am

Those McDowell’s are always ripping people off! Their namesake hamburger restaurant features a burger called The Big Mic-2 all beef patties, special sauce, lettuce, cheese-but their buns have no seeds! Their logo isn’t Golden Arches, but Golden Arcs! Come on McDowell’s, get an original idea!!!!!

Al

April 20th, 2012
9:04 am

Excellent reporting! Please keep up with this story as it unfolds.

stephieZ

April 20th, 2012
9:32 am

@soul glow – I LOVE it!

reds

April 20th, 2012
11:04 am

Thanks for the update Jon. Great work, detective.

Foodgeek

April 20th, 2012
11:35 am

I have no horse in this race, but I believe the lawsuit is without basis. Having been to Antico and Fuoco several times each, I can attest that I was never told that Fuoco was affiliated with Antico, even in their earliest days, nor did I ever have any reason to believe that they were. And I’ve eaten both the Diavolo and the Fuoco and didn’t notice any real similarity. Kind of surprised that’s part of the suit, actually. If this flies in court, that would open up the field for lots of other recipe-based lawsuits, and I don’t think we have any evidence of exploiting “proprietary” information, here.

Patrick

April 20th, 2012
12:44 pm

@ Soul Glow – Cracking me up. I was about to type the same thing before you beat me to it.

Queen Nerfballteedi

April 20th, 2012
12:45 pm

Nice one SG!

m

April 20th, 2012
1:07 pm

Why is no one complaining about the rating system the AJC uses for restaurants? I thought that was required?

Anyway, the rating system needs updating…it’s said, now let’s get on with the legalpizza.

lucretsia

April 20th, 2012
1:10 pm

Since when did having a brick oven and an open kitchen so customers can view the making of a pizza become something unique? I’d say that’s common to about a third of all pizza joints.

piezaan

April 20th, 2012
1:18 pm

Will a real pizza place come to the Decatur area!!!

Bob from Accounttemps

April 20th, 2012
1:29 pm

Terrific reporting! With respect, this is the first time I’ve seen such attention to detail in a story in the AJC outside the sports pages.

Tag

April 20th, 2012
1:31 pm

Who can imagine two pizza restaurants where you can see the oven.
OMG what is this world coming to.

Next, two car dealers where you can see the cars from the street.

Pat

April 20th, 2012
1:37 pm

@Soul Glow, hahaha. I almost fell out of my chair :-)

Gwinnett Mom

April 20th, 2012
1:42 pm

Now U no why my family eats only Pizza Hut or Pappa Jons.

Tony TIger

April 20th, 2012
1:50 pm

One thing about this sort of pizza feud, It always comes down to money. In fact, you could say that:

“it’s all about the dough”

kmariag

April 20th, 2012
1:59 pm

Ooooh! It’s going down in the ATL Pizza Parking Lots! Wow. Waaaay more interesting than anything on Bravo!! And “Soul Glow” you just made me snort tea! Hahahahaha! Fascinating story John!

SadPizza

April 20th, 2012
2:08 pm

I feel sorry for your family, Gwinnett Mom.

Lorenzo

April 20th, 2012
2:10 pm

Jon Watson, investigative reporter! Nice overview, thanks. Any chance you can post a copy of the complaint somewhere?

Chris

April 20th, 2012
2:25 pm

Been to both places, at Fuoco I never was told it was a satellite location but you would have to be blind and deaf not to believe the places weren’t related.

The Diavolo and Fuoco tasted exactly the same to me. I love both places so hopefully if Antico wins they’ll keep the place open as an official location.

Sam

April 20th, 2012
2:35 pm

Several sandwich shops I know keep #10 cans of olives, peppers and other ingredients on metro shelving around the restaurant as “decor.” Do they need to be brought into the suit as well?

ATL Flames Fan

April 20th, 2012
2:45 pm

@Soul Glow
That is just too funny!
For those who did not get it, you had to see the Eddie Murphy flick, “Coming to America”.

Gwinnett Mom

April 20th, 2012
2:48 pm

@ Sadpizza?

Why do U feel sorry 4 my family?

Grape Ape

April 20th, 2012
2:52 pm

@Gwinnett Mom – I have 2 guesses. 1- Because you spell like a tweeny-bopper sending a text message (”Now U no”) or 2- because you only feed your family mass produced crappy delivery pizza. But those are just guesses, I could be way off.

Rod

April 20th, 2012
2:58 pm

Wow Jon, what’d you get paid (under the table) for this hatchet job?

Baltisraul

April 20th, 2012
3:06 pm

Gwinnett Mon……at least you didn’t say You bought Red Baron pizza for your family! But sometimes all you have time for is Cici’s or Hungry Howie’s. It is not the end of the world.

Baltisraul

April 20th, 2012
3:08 pm

Rod……I believe Jon was reporting facts from the filed lawsuit. How in the h_ll is that a hatchet job! Way too sensitive, little fella!!!!!!!!!!

Horsetoothedjackass

April 20th, 2012
3:13 pm

The claims of stealing interior designs is pretty funny, as both places are decorated in what is a somewhat common trend for pizza places these days. Let’s hope all of these barbecue places don’t start suing each other over the swine-related and country-related decor that is commonplace in most barbecue joints….

I think that unless there was some sort of iron-clad “non-compete” clause signed by the former partners as well as their former employees, they really don’t have a case on that. I know in my job, our sales manager had a 6 month “non-compete” clause that allowed him to come to our company, but he could not pursue any of accounts of his former employer for 6 months. I had to sign a non-compete when I was hired, but the company doesn’t seem to enforce it, as a previous sales manager quit to go work for a competitor and they didn’t do a thing.

Car Guy

April 20th, 2012
3:54 pm

Gwinnett Mom,

First, spell check is your friend. Second, crime is everywhere. If you think you are remaining safe because you stay in your house and order in pizza you are living under a rock. Have you checked the records of the people that live in your neighborhood? You might be surprised in what you find.

fred smith

April 20th, 2012
4:08 pm

Car Guy,

You don’t really believe that Gwinnett Mom is real, do you?

Why Delete

April 20th, 2012
4:18 pm

I see this was deleted earlier – what is the deal with this?? Is it for real?

http://johndipalma.blogspot.com/

Gwinnett Mom

April 20th, 2012
7:52 pm

And I see my coments are being sensored.

What ever happend 2 free speach?

Baltisraul

April 21st, 2012
6:42 am

Gwinnett Mom……..What happened to free speech, you say? Our president does not like the concept!!!!!!!!!!!!!!!!!!!!!!!!

gwinnett

Alan Keyes

April 21st, 2012
6:56 pm

Y’all posting in a troll thread.

THE TRUTH

April 21st, 2012
7:10 pm

Bad press for both places. I am going to mellow mushroom.

OBAMA

April 21st, 2012
7:19 pm

Thank you Gwinnett Mom .

Roswell Dad

April 21st, 2012
7:24 pm

Gwinnett Mom,
I think it’s the “idiot” filter that is “sensoring” your “free speach.” But you should definitely sue. Look up the Antico lawyer!

DiPalma is a scumbag

April 21st, 2012
7:35 pm

John Dipalma is a scumbag. He kidnapped his son from his exwife and has screwed over numerous people through business and flat out fraud. Check out the link “why delete” posted above. If it weren’t true he’d sue to have it removed. Obviously he has no problem with litigation. Simply Google his name and see what comes back.

Lawyer With Common Sense

April 21st, 2012
7:55 pm

Obviously all parties involved dropped the ball by not getting a Covenant Not to Compete signed when the sale of the shares took place. This is corporate law ABC law. I was astonished to see that the lawsuit was not to enforce breach of a covenant.

THE TRUTH

April 21st, 2012
8:02 pm

That’s a spicy meatball!

Butch

April 21st, 2012
8:28 pm

Ronzul

April 21st, 2012
8:32 pm

Piazaan Check out Avellinos off Dekalb. Fantastic NY style pizza.

By all accounts Giovanni is nuttier than squirrel poop. He’s a real dirtbag so I could car less about his idiotic lawsuit. Good wood fire pie headed to Edgewood/ Dekalb Ave soon too so Antico will no longer get any of my hard earned money.

Baltisraul

April 22nd, 2012
7:47 am

Who has good Chicago style “deep dish” pizza?

Edward

April 22nd, 2012
9:40 am

Having enjoyed pizza at Antico and Fuoco, I still think Antico is slightly better. They are both cooked to perfection in those ovens, but the overall taste of the pizza is just more to my liking at Antico.

sansho1

April 23rd, 2012
6:34 am

So, am I to understand that the kid who hangs out in Antico’s kitchen was kidnapped from his mother?

Smyrna Aunt

April 23rd, 2012
11:28 am

Sansho, that’s what I’m wondering. If he has indeed been kept from his mom all these years – WOW. But are the police involved? What’s Giovanni/Johnny’s story?

And, oh yes, it’s Obama’s fault your post is gone. *major eye roll* Idiots.

gern

April 23rd, 2012
11:44 am

Get Bravo, Food Network, TruTV, A&E, Oxygen, or other cable outfit on the horn … Pizza Wars is reality TV series set in Atlanta that is sure to be on the way

informed dude

April 23rd, 2012
11:54 am

this is before
http://johndipalma.blogspot.com/
Maybe he’ll start suing people that are good at kidnapping.
this is after
johndipalma.com