Cisco reaches agreement with attorney in second Troll Tracker suit

Michelle Massey, East Texas Bureau Jan. 12, 2010, 10:58am

T. John Ward Jr.

TEXARKANA, Ark. -- Cisco Systems has agreed to settle the second defamation lawsuit stemming from blog posts on the Patent Troll Tracker site. Terms of the Jan. 8 settlement were not released.

The son of an East Texas judge, T. John "Johnny" Ward Jr. filed suit against Cisco Systems and Richard Frenkel, a former Cisco lawyer who blogged anonymously as the Patent Troll Tracker. His suit was filed in the Texarkana Division of the Western District of Arkansas on March 13, 2008.

A settlement with attorney Eric Albritton, who joins Ward as co-counsel in many patent infringement lawsuits, was reached in September 2009 in Marshall, Texas.

Johnny Ward is the son of U.S. District Judge T. John Ward, who has contributed to making the Eastern District of Texas a "rocket docket" for patent litigation.

The Patent Troll Tracker blog, which is now available by invitation only, put the spotlight on what it said were shell companies, or "patent trolls," that purchased patents and then sued innovative companies for infringement.

The lawsuit accused the blogger of publishing false and defamatory statements that Ward and Albritton had conspired with the federal district clerk to alter court documents.

Specifically, the plaintiffs argued the blog incorrectly implied that Ward and Albritton convinced the district clerk to change the filing date of a patent infringement complaint, ESN V. Cisco.

Ward dismissed Rick Frenkel from the lawsuit after Cisco agreed to take responsibility for the blog. The blog was published anonymously until a Chicago plaintiff's lawyer offered a $15,000 bounty for the blogger's identification. Cisco's director of intellectual property, Richard Frenkel, revealed he was the blog's author.

Throughout the case, the defendants maintained that the blog posts were correct and constitutionally protected.

Testimony from the district clerk, Albritton's legal assistant and Albritton confirmed that the documents were marked "filed" on the wrong date, Oct. 15, and were later changed at the request of Albritton's office to show the correct date, Oct. 16.

The plaintiffs argued that their filing was not out of the ordinary. With an attorney request and civil cover sheet, the district clerk's office will set up a shell case file with an assigned case number and judge up to 24 hours prior to the actual filing of the lawsuit.

The attorneys say they requested a shell case file and opened the program to start the filing just a little before midnight on Oct. 15, and the complaint was uploaded a few minutes later on Oct. 16. The local rules states that the case is filed when the complaint is electronically uploaded.

But in this case, the date was particularly significant because the patent was not legally issued until Oct. 16. An infringement case filed on Oct. 15 would have no legal basis.

Members of the local rules committee, the district clerk and Albritton stated that a similar incident could occur again. The district clerk testified that he would be placing a notice in the rules regarding this possible error.

A settlement conference was held on Jan. 7 in Fayetteville, Ark., before U.S. Magistrate Judge Erin Setser, but the parties did not reach a final settlement agreement.

With some language changes, Cisco attorneys agreed to settle on Jan. 8.

The settlement comes a month before the lawsuit was set for trial in the Western District of Arkansas. U.S. District Judge Jimmy Hendren dismissed the litigation on Jan. 11.

The first lawsuit, filed by Eric Albritton, settled the day before the jury was scheduled to hear closing arguments and begin deliberations. Those settlement terms are also confidential.

On the witness stand, Albritton argued that the blog posts went beyond implying that the case was marked wrong but called the lawyers criminals for "conspiring" to change the dates.

Although the blog posts used the word "conspire," Frenkel and Cisco argued that it did not mean with criminal intent but that Albritton and Ward worked with the clerk's office to change the date instead of filing a motion for correction.

The plaintiffs insisted their actions were legal but felt the defendants accused them of acting not only illegally but also unethically.

Regarding the confidential settlement, Cisco stated, ""The parties are happy to report that the dispute among them 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."

Currently, Cisco has not released a statement regarding the lawsuit filed by T. John Ward Jr.

Case No. 4:08cv04022

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