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A central California real estate developer is hoping the 9th U.S. Circuit Court of Appeals will overturn a $7.7 million jury award in a novel copyright infringement case involving floor plans for a truck stop. Tommy G. Pistacchio and his company, Central California Kenworth Inc., built a truck stop in Madera, Calif., close to Interstate 5, the state’s major north-south highway. He had tried to interest Flying J Inc., of Brigham City, Utah, the nation’s largest truck stop operator, in leasing the station. Negotiations broke down, so he turned instead to Flying J’s chief competitor, Pilot Corp., of Knoxville, Tenn. Pilot asked for some substantive changes in the layout, which Pistacchio made, and eventually, the truck stop — or “travel plaza,” as the operators like to call them — went into operation. REVELATION But Flying J then hired Roland S. Katz, an intellectual property partner in the San Francisco office of New York’s Coudert Brothers. Katz filed a copyright infringement claim, charging that Pistacchio’s station was built according to misappropriated Flying J Plans. Flying J. v. Central California Kenworth Inc., CV-F-95-5030 LJA. The Flying J plans are novel and important, Katz says, and because of their unique layout, the truck stop company is able to do more work with fewer employees and make big labor cost savings. Pistacchio’s truck stop — before the changes requested by Pilot — was “an absolute knockoff … literally down to the decorations of the tiles in the bathroom,” said Katz. Pistacchio is represented by Samuel B. Shepherd of the Palo Alto, Calif., office of Los Angeles’ Quinn Emanuel Urquhart Oliver & Hedges. Shepherd insists that his client did not know that his architect was using a set of misappropriated plans and that, in any case, Flying J should have brought up the issue of similarity back during the lease negotiations. “Our contention is that they waived the right to sue because they came in, inspected it before it had been leased to anyone and entered into business negotiations with our client,” he said. The case was tried in front of a magistrate judge in Fresno, Calif., because the local community’s current high level of gang activity has clogged the calendars of all local Article 3 judges with criminal cases. Shepherd has made motions to the judge to set aside the July 24 jury award and is seeking a new trial. However, he said that he expects ultimate resolution from the 9th Circuit. “When the 9th Circuit looks at this, they will find a clear case of waiver and estoppel,” he said. “I haven’t heard any good arguments yet from plaintiff’s side why these shouldn’t prevail.” Katz would only say that Pistacchio “did our worst nightmare. The devil is in the details, and this guy copied the details. And then he handed it over to our competitor.” NOT UNUSUAL AT ALL Katz acknowledged that lawyers from white-shoe Coudert aren’t ordinarily to be seen hanging around truck stops. But Flying J is not “a mom-and-pop operation, but a very large corporate client, which operates more than 115 truck stops nationwide,” he said. And yes, he actually visited the facility involved in the litigation — but not until late in the proceedings. Ordinarily, he flew from San Francisco to Fresno for the trial. But this summer, during United Airlines’ labor difficulties, he sometimes had to make the trip by automobile. So, while the jury was out deliberating, he drove over to nearby Madera and checked out the station. Shepherd has some harsh words for the manner in which Katz cross-examined Pistacchio. “My client is clearly an Italian-American, and opposing counsel would throw out questions like ‘Do you own a casino? Do you know whether your accountants have committed tax fraud?’ What do you do when you want to smear an Italian-American? Associate him with casinos and smear him with accounting practices.” But those issues had come up during deposition, maintained Katz. And besides, he asked, why would he want to disparage Italian-Americans? “There’s no basis for that stuff,” he said. “And for all I know, there were Italians on the jury.”

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