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.
The jury, which had been scheduled to hear closing arguments and begin deliberations Tuesday, was not in court on Monday as Schell considered Cisco and Frenkel's motion for judgment as a matter of law. In that motion, the defendants argued that Albritton didn't have enough evidence to warrant proceeding to a jury verdict. Schell denied all of the defendants' arguments, except for one: that the plaintiffs had to prove "actual malice" in order to collect punitive damages.
"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.
"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.
Photo via Wikimedia
Does anyone read this as though he surrendered, rather than letting himself be embarrassed by losing, after he found that he'd have to prove actual malice (and therefore probably wouldn't get any money even if he won)?
I'd have been tempted to beat him in court, though I can understand why it wouldn't make any financial sense for Cisco, especially if the terms of the settlement were favorable.
Posted by: IDBIIP | September 23, 2009 at 05:51 AM
I read it that Cisco lost ALL but one of their JMOL motions and this was an easy way out.
Posted by: TexasRanger | September 23, 2009 at 10:46 AM
TexasRanger:"I read it that Cisco lost ALL but one of their JMOL motions and this was an easy way out"
You think that Ciosco thought that Albritton was going to succeed in showing that Frenkel intentionally or recklessly published falsehoods?
If so, you're an idiot. Oops, I'm sorry -- you're from Texas. I meant to say "you're an idiot, here's a kleenex."
Posted by: America | September 23, 2009 at 11:26 AM
Wish I'd been a fly on the wall during the settlement negotiations. Though I can't believe this case made it to court, at least the soap opera was an entertaining diversion in the course of my readings on patent litigation.
http://www.GeneralPatent.com
Posted by: Gena777 | September 27, 2009 at 08:11 PM