After four days of testimony, the "Troll Tracker" defamation lawsuit ended in a confidential settlement the day before the East Texas jury hearing it was set to begin deliberations.
Plaintiff Eric Albritton and defendants Cisco Systems and Rick Frenkel, a former Cisco lawyer who blogged anonymously as the Patent Troll Tracker, settled the case Monday night, shortly after Judge Richard Schell ruled that the jurors would have to find "actual malice" on the part of Frenkel and Cisco in order for Albritton to win the punitive damages he was seeking from the tech giant.
None of the lawyers involved in the case would comment on the settlement Monday. Cisco issued a statement Tuesday morning in which it said the dispute between the parties "has been resolved to their mutual satisfaction, and Rick Frenkel and Cisco apologize for the statements of Rick Frenkel on the Troll Tracker blog regarding Eric M. Albritton." Frenkel is now of counsel at the Silicon Valley law firm Wilson Sonsini Goodrich & Rosati.
"Actual malice"—a high standard for a defamation plaintiff to meet—was established by the Supreme Court in its historic New York Times v. Sullivan decision. To prove "actual malice," a plaintiff must show that the defendant either knowingly published falsehoods as facts, or showed "reckless disregard" for the truth. In general, a plaintiff must be a public figure to trigger the "actual malice" standard. Someone considered a private figure only needs to prove that a publisher was negligent in its actions.
Schell had ruled earlier during the four-day trial—at which Frenkel, Albritton, and Ward all testified—that Albritton was a private figure, and could therefore win his case by proving that Cisco and Frenkel had been negligent. Earlier rulings barred Albritton from seeking damages to his reputation, leaving him to pursue damages for "mental anguish" and punitive damages against Cisco. On Monday, Schell ruled that while Albritton was indeed a private figure, Frenkel's blogging was about an issue of public concern (the work of the court clerk's office), which meant Albritton had to meet the higher standard of "actual malice" in order to qualify for punitive damages.
Throughout the litigation, Frenkel maintained that the two blog posts at the heart of the case—which he wrote about a changed date in the docket in Albritton's ESN v. Cisco patent infringement suit—contained both true facts and constitutionally protected opinion about "abusive" patent litigation in East Texas. On the witness stand, Frenkel apologized for referring to the Eastern District of Texas a "Banana Republic" in one of the offending posts, which he later revised to eliminate that reference.
A second defamation lawsuit, Ward v. Cisco Systems, has been brought by T. John "Johnny" Ward Jr., another Eastern District patent heavyweight representing ESN in its patent suit against Cisco. That lawsuit has dropped Frenkel as a defendant personally, and continues only against Cisco. It is scheduled for trial in early 2010. The ESN v. Cisco patent suit that launched the dispute also remains active.
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