[Paullee]

Judge Shuts Down Finjan Investors' Suit Over $44M Sale
By Craig Clough

Law360 (September 14, 2021, 7:31 PM EDT) -- A California federal judge has dismissed with prejudice Finjan Holdings investors' proposed securities class action over the cybersecurity company's $44 million sale to Fortress Investment Group, finding the lead plaintiff again failed to allege any plausible motive for leadership to devalue the company.

Judge Edward M. Chen said lead plaintiff Robert Grier "selectively cites" from a recommendation statement Finjan filed with the U.S. Securities and Exchange Commission to his benefit, and a full examination of the document leads to the conclusion that Finjan was sold at a fair market price.

Judge Chen had already dismissed the suit earlier in the year without prejudice while giving the lead plaintiff another shot at outlining a theory of motive, but said in his new order on Monday that no definite facts emerged about why Finjan President and CEO Philip Hartstein would undervalue the company due to Hartstein's ownership of a significant amount of restricted stock units.

"Indeed, if Mr. Hartstein wished to maximize the benefit to be obtained from his RSUs, if anything, he had an incentive to get a higher tender offer (per share) from Fortress (or any other suitor) because the value of the RSUs was based on the merger consideration per share," the judge said. "It was thus contrary to his financial interest in his RSUs to undervalue Finjan shares."

Grier filed the proposed class action against Finjan, Hartstein and former members of its board of directors, relating to a deal announced June 2020 in which Fortress Investment Group LLC agreed to buy Finjan's outstanding shares for $1.55 each in a tender offer. The transaction closed in July 2020.

Finjan's board issued a recommendation statement that was supported by a fairness opinion prepared by financial adviser Atlas Technology Group LLC. The suit alleges that only one of three analyses in the fairness opinion supported the merger consideration of $1.55 per share, but that analysis was allegedly flawed because it was based on false or misleading information from Finjan management.

Grier alleges that the "multiyear projections" used in the analysis undervalued Finjan. Those projections, based on information Finjan gave to Atlas in May, indicated Finjan was expected to earn about $160 million in revenue across its three business lines over five years. But Finjan said in an investor presentation in December 2019 that it expected to generate $200 million to $400 million in licensing and enforcement revenue alone for the 2019-2022 period, according to the judge's order.

Grier said that with $200 million in revenue, Finjan stock would have been worth about $4.36 per share, and with $400 million, it would have been worth about $15.50 per share.

When Judge Chen dismissed the suit in April without prejudice, he had said he couldn't overlook the suit's failure to allege a plausible motive because there are no "compelling and particularized facts alleged in support of the claim of fraudulent intent." He added there was concrete market evidence that the merger consideration was reasonable, noting that around the same time of Fortress' offer, another party had made an offer of $1.50 per share.

The second amended complaint failed to change Judge Chen's mind. After examining the entire sales process, rather than just what was presented by Grier, the judge said it is clear only two companies made a solid offer.

"Weighing against lead plaintiff is the undisputed fact that the offer made by Fortress ($1.55 per share) was similar to the offer made by Party B ($1.50 per share)," the judge said.

The judge added, "Moreover, the full picture of the sales process as described above indicates that the similar valuation was not mere happenstance but rather was reflective of the true market value of Finjan's stock."

The second amended complaint also outlined a theory that Hartstein would be in a better position if Fortress bought Finjan over the other bidder, including that Finjan was "agitated" with Hartstein, and he would have more job security by Fortress taking the cybersecurity company private. But the judge said the arguments were only speculation.

"Here, there is no particularized evidence supporting lead plaintiff's speculation that Mr. Hartstein had a motive to undervalue Finjan's stock in order to induce Fortress to acquire Finjan as a way to thwart Party B," the judge said.

Counsel for the parties did not immediately respond to requests for comment.

Grier and the proposed class are represented by Juan E. Monteverde, David E. Bower, Miles D. Schreiner and John Baylet of Monteverde & Associates PC.

Finjan is represented by James L. Jacobs and Valerie M. Wagner of GCA Law Partners LLP.

The case is In re: Finjan Holdings, Inc. Securities Litigation, case number 3:20-cv-04289, in the U.S. District Court for the Northern District of California.

--Additional reporting by Sarah Jarvis. Editing by Lakshna Mehta.
For a reprint of this article, please contact [e-mail].

[Paullee]

the biggie, gone

Finjan, Cisco Will Drop IP Fight Before COVID-Delayed Trial
By Tiffany Hu

Law360 (May 27, 2021, 8:02 PM EDT) -- Finjan and Cisco have agreed to drop a patent fight in California federal court over anti-malware systems, days before a much-delayed trial was scheduled to take place.

The companies' stipulation of dismissal, filed Wednesday, seeks to end Finjan's lawsuit against Cisco, which was accused of infringing five Finjan patents that cover ways to protect computers from malicious software and viruses when connected to the internet.

The case was originally set for trial in June 2020 before being postponed because of the COVID-19 pandemic to Oct. 19. It was then delayed to Nov. 2, and then to Jan. 11, before being postponed again to next week.

The stipulation doesn't offer an explanation but states that the companies "have resolved their dispute in the captioned case and accordingly stipulate to dismissal with prejudice."

Representatives for the companies did not immediately return requests for comment Thursday.

According to Finjan's lawsuit, Cisco's infringement began when it acquired technology from a company called Sourcefire Inc. and then refused to enter a licensing agreement with Finjan.

Cisco had denied the allegations and sought to invalidate at least some of the patents-in-suit.

In April 2020, Judge Freeman told the attorneys to prepare for a June 15, 2020, trial. At the time, the judge said she was "fairly confident" that Finjan's patent infringement suit could go before a jury in June and July, with social distancing restrictions in place.

But the Northern District of California's top judge issued an order in May 2020 postponing or vacating all new civil jury trials scheduled to commence through Sept. 30, citing the continued disruptions to the judicial system caused by the pandemic.

During a status conference last May, Judge Freeman pushed the start of the trial to Oct. 19, saying that she had "high hopes" it would be the first civil jury trial in the district but that the court's "enormous backlog" of criminal cases would take priority.

The patents-in-suit are U.S. Patent Nos. 6,154,844, 6,804,780, 7,647,633, 8,141,154 and 8,677,494.

Finjan is represented by Juanita Brooks, Roger Denning, Frank J. Albert, Megan A. Chacon, K. Nicole Williams, Oliver J. Richards, Jared A. Smith, Tucker N. Terhufen and Aamir Kazi of Fish & Richardson PC.

Cisco is represented by D. Stuart Bartow, Joseph A. Powers, Jarrad M. Gunther, L. Norwood Jameson, Matthew C. Gaudet, David C. Dotson, John R. Gibson, Jennifer H. Forté and Alice E. Snedeker of Duane Morris LLP.

The case is Finjan LLC v. Cisco Systems Inc., case number 5:17-cv-00072, in the U.S. District Court for the Northern District of California.

--Additional reporting by Lauren Berg and Craig Clough. Editing by Rich Mills.

[Paullee]

Finjan Owes $5.9M In Patent 'Fiasco,' Special Master Says
By Lauren Berg

Law360 (May 24, 2021, 9:05 PM EDT) -- Finjan Inc. should foot a $5.9 million portion of Juniper Networks' legal bill, a special master has determined, after U.S. District Judge William Alsup said Finjan repeatedly "wasted everyone's time and energy" by flip-flopping on its patent infringement theory in an attempt to artificially boost damages.

In a 21-page report Thursday, special master Matthew Borden of Braunhagey & Borden LLP recommended that patent licensing company Finjan pay networking infrastructure provider Juniper nearly $6 million in reasonable fees for work done that culminated in winning two summary judgment motions, defeating a summary judgment motion and prevailing in a five-day jury trial in California federal court.

Juniper asked for a little more than $6.2 million after writing off more than $2.4 million in fees and organizing its billing into 133 separate projects, according to the report. Finjan objected to nearly every project, arguing that Juniper's senior attorneys spent too much time on the case and that it should only get fees for work on the two patents at issue, rather than all the patents-in-suit, the report states.

"From a review of both sides' billing records, it appears that Juniper's defense was proportional to the intensity with which Finjan prosecuted the case," Borden said. "It does not appear that Juniper overreached on its claimed fees, such that any penalty should be assessed against it."

Juniper is entitled to recover reasonable fees except those "bearing little or no relation" to U.S. Patent Nos. 8,677,494 and 6,804,780, the special master said, but said the company's apportionment of fees for its work on other patents is fair and accurate.

Special master Borden's report comes after Judge Alsup in January ordered Finjan to pay a portion of Juniper's legal fees. He said Finjan "flip-flopped" on the eve of trial when it sought to put forth a new infringement theory over one of its malware detection patents after realizing its original one only covered a small part of Juniper's revenue.

"Finjan tried to sneak this theory in with its expert-damages report, but we caught it, and the Daubert order excluded that trick," Judge Alsup said.

Finjan, which brought suit in 2017 alleging Juniper infringed nine patents covering technologies for storing and downloading security data, tried to claim $142 million in damages after Juniper provided evidence in discovery that, at most, Juniper would owe less than $1.8 million if a jury found its products infringed the remaining patent in the case, U.S. Patent No. 8,677,494.

"Finjan's first-round '494 patent damages fiasco wasted a great deal of everyone's time and energy," Judge Alsup wrote in his order.

After the Federal Circuit affirmed Juniper's jury win against the only patent claim that had survived to trial, Juniper asked Judge Alsup to grant it legal fees for its expenses litigating against the nine patent claims.

At a hearing on Juniper's bid for attorney fees in January, Finjan pointed to its expert testimony, but Judge Alsup lamented the "standard patent BS by bought-and-paid-for experts." Finjan pushed back, saying it had a good-faith belief it wasn't altering its damages theory.

Judge Alsup appointed Borden, his former law clerk, to sort out the fee dispute and instructed Juniper to resubmit billing records distinguishing between time spent by its attorneys on the '494 and '780 patents and time spent on other facets of the litigation.

In his report and recommendation on Thursday, special master Borden rejected Finjan's argument that Juniper's senior attorneys spent too much time on the case, finding that a comparison between the parties' billing for 16 projects showed their staffing was generally proportional.

For example, Juniper's staffing for the summary judgment motions on the '780 and '494 patents was similar to, if not more efficient than, Finjan's, the special master said. He said Juniper had three fewer timekeepers and spent less time overall: 644.8 hours by Juniper compared to 696.5 hours by Finjan.

The special master also said the record doesn't support Finjan's argument that Juniper's senior lawyers spent too much time on the case.

Representatives for the parties did not immediately respond to requests for comment Monday.

The patents-in-suit are U.S. Patent Nos. 6,804,780 and 8,677,494.

Finjan is represented by Juanita Brooks, Frank J. Albert, Rob Courtney and Oliver J. Richards of Fish & Richardson PC.

Juniper is represented by Jonathan S. Kagan, Rebecca Carson and Ingrid Petersen of Irell & Manella LLP.

The case is Finjan Inc. v. Juniper Network Inc. et al., case number 3:17-cv-05659, in the U.S. District Court for the Northern District of California.

--Additional reporting by Hannah Albarazi and Britain Eakin. Editing by Michael Watanabe

[Paullee]

Finjan Beats Investor Suit Over $44M Fortress Deal, For Now
By Sarah Jarvis

Law360 (April 14, 2021, 7:33 PM EDT) -- Cybersecurity company Finjan Holdings has beaten shareholders' proposed securities class action, but a California federal judge left room for the investors to amend their claims that the company made misrepresentations about its $44 million acquisition deal last year.

U.S. District Judge Edward M. Chen said in his order on Tuesday that lead plaintiff Robert Grier didn't include in his November amended complaint any allegations as to why Finjan and its leaders would endorse as true certain financial projections that allegedly undervalued the company if management actually believed the projections were false.

"The FAC does not contain any allegations suggesting that defendants would secure unique benefits not afforded to shareholders if the tender offer were to go through," Judge Chen said. "Nor are there any other allegations suggesting that defendants' interests regarding the tender offer were not aligned with those of the shareholders."

Judge Chen called the complaint's lack of motive "highly problematic" in light of a recent Ninth Circuit opinion in Prodanova v. H.C. Wainwright & Co. LLC, which found that if a complaint "fails to plead a plausible motive for the allegedly fraudulent action, the plaintiff will face a substantial hurdle in establishing scienter," according to Tuesday's order.

Grier and the proposed class had filed suit against Finjan, its president and CEO Philip Hartstein and former members of its board of directors, relating to an announced deal in which Fortress Investment Group LLC agreed to buy Finjan's outstanding shares for $1.55 each in a tender offer. The transaction closed in July, according to an announcement from Finjan.

Judge Chen said Finjan's board issued a recommendation statement that was supported by a fairness opinion prepared by financial adviser Atlas Technology Group LLC. The shareholders had alleged that only one of three analyses in the fairness opinion supported the fairness of the merger consideration of $1.55 per share, but that analysis was allegedly flawed because it was based on false or misleading information from Finjan management.

The shareholders alleged that the "multiyear projections" used in the analysis undervalued Finjan. Those projections, based on information Finjan gave to Atlas in May, indicated Finjan was expected to earn about $160 million in revenue across its three business lines over five years. But Finjan said in an investor presentation in December 2019 that it expected to generate $200 million to $400 million in licensing and enforcement revenue alone for the 2019-2022 period, according to the order.

Grier said that with $200 million in revenue, Finjan stock would have been worth about $4.36 per share, and with $400 million, it would have been worth about $15.50 per share. He also argued that "optimism aside," the state of Finjan at that time justified more than $1.55 per share, according to the order.

Finjan argued that the recommendation statement and fairness opinion were accurate, because there was volatility and a downward trend in revenues in the months leading up to the deal, adding that operating expenses were high and the coronavirus pandemic created uncertainty, a delay in revenue and an increase in expenses.

Finjan also indicated the company's cash balances had decreased from $65 million in June 2018 to the $27 million they had projected for June 2020, according to the order.

Judge Chen said he can't overlook the shareholders' failure to allege a plausible motive, because there are not "compelling and particularized facts alleged in support of the claim of fraudulent intent." He added there was concrete market evidence that the merger consideration was reasonable, noting that around the same time of Fortress' offer, another party had made an offer of $1.50 per share.

But Judge Chen gave Grier leave to amend his Securities Exchange Act claim, saying the shareholder argued at a court hearing that Finjan managers would have wanted to carry out the merger because the company would become private and they would have had more secure employment.

"This motive, however, has not been alleged in the operative pleading and therefore the court gives it no consideration at this juncture," Judge Chen said.

Counsel for the parties did not immediately respond to requests for comment.

Grier and the proposed class are represented by Juan E. Monteverde, David E. Bower, Miles D. Schreiner and John Baylet of Monteverde & Associates PC.

Finjan is represented by James L. Jacobs and Valerie M. Wagner of GCA Law Partners LLP.

The case is In re: Finjan Holdings Inc. Securities Litigation, case number 3:20-cv-04289, in the U.S. District Court for the Northern District of California.

--Additional reporting by McCord Pagan. Editing by Nicole Bleier.

[Paullee]

Alsup Rips 'Standard Patent BS' In $8.7M Atty Fee Fight
By Hannah Albarazi

Law360, San Francisco (January 7, 2021, 8:29 PM EST) -- U.S. District Judge William Alsup appeared unlikely to let Finjan Inc. skip out on Juniper Networks' $8.65 million legal bill following its defeat at trial, calling out Finjan on Thursday for changing its patent infringement theory to inflate damages and lamenting the "standard patent BS by bought-and-paid-for experts."

Juniper, which won a judgment in 2018 that it does not infringe the patents asserted by Finjan, urged Judge Alsup to find the case exceptional and to award it attorneys fees, pointing to Finjan's attempt to change its infringement theory to one not advanced by its expert in order to increase damages.

While Finjan denied changing its infringement theory and argued that it "had a good-faith belief it wasn't changing its damages theory," Judge Alsup disagreed.

"It is absolutely true that Finjan changed its damages model and its infringement theory whenever it learned that it wasn't going to get much money out of the first one," Judge Alsup said. "I remember that. I was convinced of it at the time; I'm convinced of it now."

When Finjan's attorney, Juanita R. Brooks of Fish & Richardson P.C., tried to point to expert statements on the subject, Judge Alsup wasn't having it and described those statements as "just standard patent BS by bought-and-paid for-experts."

"The bought-and-paid-for experts will say anything. They will say anything, on both sides. I don't trust a word of that," Judge Alsup said.

After the Federal Circuit affirmed Juniper's jury win against the only patent claim that had survived to trial, Juniper asked Judge Alsup to grant it legal fees for its expenses litigating against the nine patent claims that the California-based patent licensing company lodged against it in 2017. Finjan accused Juniper of infringing patents covering technologies for storing and downloading security data.

Juniper said that as the case was nearing trial, Finjan tried to claim $142 million in damages after Juniper provided evidence in discovery that, at most, Juniper would owe less than $1.8 million if the jury found its products infringed the remaining patent in the case, U.S. Patent No. 8,677,494.

But Finjan said it had reasonably relied on an expert damages model approved by past Federal Circuit law and aligned with an expert's damages model that the infringing act was Juniper's sale of its product.

Judge Alsup has yet to rule on Juniper's earlier allegations that Finjan's former counsel, attorneys at Kramer Levin Naftalis & Frankel LLP, ought to be sanctioned for lying and pushing "overreaching" theories, particularly about damages.

Juniper's attorney, Jonathan Kagan of Irell & Manella LLP, told Judge Alsup Thursday that Finjan is still misleading the court.

Kagan said that Finjan's "shenanigans" are "the exact type of shifting sand approach" that justifies finding a case extraordinary.

"We have this changing infringement theory just to try to artificially boost damages, the undisclosed theory that your honor [struck] and then they tried to end run the ruling by sneaking it in in a different way at trial, forcing your honor to again strike it and take the issue from the jury," Kagan said.

While Brooks argued that Finjan's position was not objectively unreasonable, she also told Judge Alsup, "This is not a hill I want to die on."

Brooks told the judge that if he ends up finding Finjan absolutely changed its damages theory, he could ask Juniper to supply the attorney fees and expenses it ran up defending that issue alone, instead of its entire litigation expenses.

Kagan, however, reminded Judge Alsup that while he has such discretion, he is also under no obligation to parse out which parts of Finjan's case are exceptional.

Judge Alsup took the matter under submission Thursday without issuing a ruling.

Representatives and counsel for the parties did not immediately respond to requests for comment Thursday.

The patents-in-suit are U.S. Patent Nos. 8,141,154; 6,804,780; and 8,677,494.

Finjan is represented by Juanita R. Brooks, Francis Joseph Albert, Robert Printon Courtney and Oliver James Richards of Fish & Richardson P.C.

Juniper is represented by Jonathan Kagan, Rebecca Carson and Ingrid Marie Haslund Petersen of Irell & Manella LLP.

[Paullee]

Cisco IP Trial Pushed To June After Multiple COVID Delays

A California federal judge on Wednesday again delayed Finjan's patent infringement suit against Cisco amid the coronavirus pandemic, moving the scheduled start of the trial from January to June.

[Paullee]

Finjan Fights $8.7M Fee Bid For 'BS' Juniper Patent War
By Dave Simpson

Law360 (December 15, 2020, 11:03 PM EST) -- Finjan urged a California federal judge not to force it to pay Juniper Networks' $8.65 million legal bill for its expenses defending a case that Judge William Alsup said evoked "all the BS that goes on" in patent lawsuits, arguing that the case was "far from frivolous" and pursued in good faith.

Finjan Inc. said Monday that while it lost the jury trial in the patent infringement suit, it did win "a number of battles along the way," including beating Juniper Networks' motions to invalidate its patents and getting to trial on one of its patents.

"Contrary to Juniper's contention, this case was resolved on entirely unexceptional grounds, and though Juniper ended up prevailing in the end, Finjan vigorously pursued claims it reasonably and in good faith believed were meritorious," Finjan said. "Nothing about this case calls for fee shifting."

Last month, Juniper Networks asked U.S. District Judge Alsup to grant it legal fees for its expenses litigating against the nine patent claims that Finjan had lodged against Juniper in 2017.

The fee claims came less than two months after the Federal Circuit affirmed Juniper's win before a jury against the only patent claim that had survived to trial in a one-line order.

In Juniper's telling on Monday, Finjan had threatened "a multi-headed hydra of lawsuit[s]" if Juniper didn't agree to license an array of Finjan's alleged inventions. These were patents on technologies for storing and downloading security data and were allegedly owned by the Palo Alto, California-based patent licensing company.

But Juniper didn't think that its technology used those inventions at all. Finjan then said it would hit Juniper with a world of legal expenses in which its "best-case scenario would be to spend millions upon millions of dollars defeating each of Finjan's meritless claims."

Now, Juniper wants those millions from Finjan.

Juniper drew particular attention to an effort by Finjan, as the case was about to head to trial, to claim $142 million in damages after Juniper provided evidence in discovery that, at most, Juniper would owe less than $1.8 million if the jury found its products infringed on the remaining patent in the case, U.S. Patent No. 8,677,494.

Judge Alsup had rejected Finjan there, too, Juniper's filing recollected. Reviewing Finjan's new theory of damages, he called the numbers "eyepopping" and ultimately "preposterous."

Finjan responded Monday that the court's disagreement with the damages doesn't make the position frivolous.

"Finjan reasonably relied on an expert damages model approved by past Federal Circuit law and aligning with a reasonable interpretation that the infringing act was Juniper's sale of its product — not the consumers' post-sale use," it said.

The trial has had its odd moments. Interrogating the jurors, Judge Alsup had asked about their belief in aliens and forms of telekinesis. Finjan had rejected two jurors who expressed a dim view of so-called patent trolls, a pejorative term for nonpracticing entities that make a business of suing for patent infringement. In another filing, Juniper would note that the company is, elsewhere, suing some 20 other companies for patent infringement.

Nonetheless, the jury had found no infringement. The saga, however, only came to an end this October after a Federal Circuit panel responded with skepticism to Finjan's appeal of an earlier ruling that Finjan didn't properly notify Juniper about its alleged infringement, a finding of Judge Alsup's court.

Among other things, Juniper played up, in its bid for fees, its trial win.

Finjan shot back Monday that the court granted summary judgment in its favor that Juniper's products infringed all but one element of the claim at issue in the '494 patent — whether the products had a database.

"Juniper also ignores that Finjan presented evidence (including documents from Juniper's marketing materials and Juniper's own engineers) confirming that Juniper's product uses a database," Finjan said Monday. "While Juniper ended up prevailing with the jury, this evidence at a minimum shows Finjan's case was far from frivolous."

The tone of Juniper's November filing seemed at times incredulous about Finjan's legal strategy during the trial, which was handled by its former counsel, the New York firm Kramer Levin Naftalis & Frankel LLP.

"It is difficult to conceive of a weaker case," Juniper said about the suit, as it landed at the company's door. Following a few early summary judgment wins in 2018, Juniper said there was no reason for Finjan not to simply give up.

Judge Alsup has yet to rule on Juniper's earlier allegations that lawyers on the case at Kramer Levin ought to be sanctioned for lying in Judge Alsup's court and pushing "overreaching" theories, particularly about damages. Last month, Juniper again urged Judge Alsup to finally rule on those sanctions.

In the midst of that trial, Judge Alsup shook his head and remarked that he was convinced one side in the case must be lying to his face. He said that the case was, in his mind, indicative of "all the BS that goes on" in patent litigation.

Juniper said last month that the liars were Finjan and its legal team.

Finjan's Monday filing makes little mention of its former counsel but did ask that the firm be involved if the court does opt to award attorneys' fees.

"Even if the court were inclined to award any attorney fees, pursuant to the court's order of October 22, 2020 retaining jurisdiction over Kramer Levin for the purpose of sanctions motions, Finjan respectfully submits that further discussions concerning potential fee-shifting or sanctions require participation from Kramer Levin," it said.

The patents-in-suit are U.S. Patent Nos. 8,141,154; 6,804,780; and 8,677,494.

Finjan was represented by Francis Joseph Albert, Juanita R. Brooks, Robert Printon Courtney and Oliver James Richards of Fish & Richardson P.C.

Juniper was represented by Rebecca Carson, Dennis Joseph Courtney, Alexis Paschedag Federico, Alan J. Heinrich, Jonathan Kagan and Ingrid Marie Haslund Petersen of Irell & Manella LLP.

The case is Finjan Inc. v. Juniper Network Inc., case number 3:17-cv-05659, in the U.S. District Court for the Northern District of California.

[Paullee]

Finjan Faces $8.7M Fee Bid For 'BS' Juniper Patent War
By Andrew Karpan

Law360 (December 2, 2020, 11:02 PM EST) -- Finjan and its lawyers at Kramer Levin could face blowback for their litigation style to the tune of $8.65 million in attorney fees if Judge William Alsup, who said the case evoked "all the BS that goes on" in patent lawsuits, ultimately accepts Juniper Network's claims that the three-year patent war was based on an exceptionally weak case.

On Monday, Juniper Networks asked U.S. District Judge Alsup to grant it legal fees totaling $8.65 million for its expenses litigating against the nine patent claims that Finjan Inc. had lodged against Juniper in 2017. In a one-page ruling on Wednesday and without comment, Judge Alsup sent the fee claims to the court of U.S. Magistrate Judge Nathanael Cousins for a first look.

The fee claims come less than two months after the Federal Circuit affirmed Juniper's win before a jury against the only patent claim that had survived to trial in a one-line order.

In Juniper's telling on Monday, Finjan had threatened "a multi-headed hydra of lawsuit[s]" if Juniper didn't agree to license an array of Finjan's alleged inventions. These were patents on technologies for storing and downloading security data and were allegedly owned by the Palo Alto, California-based patent licensing company.

But Juniper didn't think that its technology used those inventions at all. Finjan then said it would hit Juniper with a world of legal expenses in which its "best-case scenario would be to spend millions upon millions of dollars defeating each of Finjan's meritless claims."

Now, Juniper wants those millions from Finjan.

The tone of Monday's filing seemed at times incredulous about Finjan's legal strategy during the trial, which was handled by the New York firm Kramer Levin Naftalis & Frankel LLP.

"It is difficult to conceive of a weaker case," Juniper said about the suit, as it landed at the company's door. Following a few early summary judgment wins in 2018, Juniper said there was no reason for Finjan not to simply give up.

"A reasonable party would have either cut its losses or accepted that it would need to adjust its expectations about the appropriate damages. Not Finjan," Juniper said in its filing.

The filing comes as Judge Alsup has yet to rule on Juniper's earlier allegations that lawyers on the case at Kramer Levin ought to be sanctioned for lying in Judge Alsup's court and pushing "overreaching" theories, particularly about damages. On Monday, Juniper again urged Judge Alsup to finally rule on those sanctions.

In the midst of that trial, Judge Alsup shook his head and remarked that he was convinced one side in the case must be lying to his face. He said that the case was, in his mind, indicative of "all the BS that goes on" in patent litigation.

Juniper said on Monday that the liars were Finjan and its legal team.

Monday's motion drew particular attention to an effort by Finjan, as the case was about to head to trial, to claim $142 million in damages after Juniper provided evidence in discovery that, at most, Juniper would owe less than $1.8 million if the jury found its products infringed on the remaining patent in the case, U.S. Patent No. 8,677,494.

Judge Alsup had rejected Finjan there, too, Juniper's filing recollected. Reviewing Finjan's new theory of damages, he called the numbers "eyepopping" and ultimately "preposterous."

"A reasonable party would have — once again — cut its losses or accepted that it would need to adjust its expectations regarding damages. But, once again, not Finjan," the filing went on.

Finjan instead pushed the case onward on its remaining patent claim and it went before a jury in late 2018.

The trial has had its odd moments. Interrogating the jurors, Judge Alsup had asked about their belief in aliens and forms of telekinesis. Finjan had rejected two jurors who expressed a dim view so-called patent trolls, a pejorative term for nonpracticing entities that make a business of suing for patent infringement. In another filing, Juniper would note that the company is, elsewhere, suing some 20 other companies for patent infringement.

Nonetheless, the jury had found no infringement. The saga, however, only came to an end this October after a Federal Circuit panel responded with skepticism to Finjan's appeal of an earlier ruling that Finjan didn't properly notify Juniper about its alleged infringement, a finding of Judge Alsup's court.

Juniper tallies the $8.65 million that it is demanding from Finjan from the costs it sustained litigating the particularly "meritless claims" before both a jury and then having to defend that verdict in the Federal Circuit.

These fees do not, however, include what Juniper spent defending the patents before inter partes reviews at the instigation of the suit, the company notes.

"Indeed, courts have approved fee awards far larger than the amount sought by Juniper for patent cases litigated through trial," Juniper said.

Representatives for the parties did not respond to a request for comment on Wednesday.

The patents-in-suit are U.S. Patent Nos. 8,141,154; 6,804,780; and 8,677,494.

Finjan was represented by Paul J. Andre and Yuridia Caire of Kramer Levin Naftalis & Frankel LLP and Francis Joseph Albert, Juanita R. Brooks, Robert Printon Courtney and Oliver James Richards of Fish & Richardson P.C.

Juniper was represented by Rebecca Carson, Dennis Joseph Courtney, Alexis Paschedag Federico, Alan J. Heinrich, Jonathan Kagan and Ingrid Marie Haslund Petersen of Irell & Manella LLP.

The case is Finjan Inc. v. Juniper Network Inc., case number 3:17-cv-05659, in the U.S. District Court for the Northern District of California.

--Additional reporting by Hannah Albarazi, Dani Kass, Dorothy Atkins and Britain Eakin. Editing by Peter Rozovsky.

[Paullee]

Fed. Circ. Asks Judge To Explain Reasoning Behind Unsealing
By Tiffany Hu

Law360 (October 20, 2020, 10:08 PM EDT) -- The Federal Circuit on Tuesday told U.S. District Judge William Alsup to explain why filings containing cybersecurity firm Finjan Inc.'s patent licensing information should be unsealed, saying the judge "did not perform the required analysis" in his initial order.

In a nonprecedential order, a three-judge panel ruled that Judge Alsup failed to make "particularized" findings before issuing an order to unseal Daubert motions that included confidential information relating to Finjan's licensing negotiations with other companies.

The panel said Judge Alsup should have followed Ninth Circuit precedent, which required him to weigh the competing interests: Finjan's interest in keeping the records private, as well as the public's interest in knowing the information, it said.

"The district court did not perform the required analysis," U.S. Chief Circuit Judge Sharon Prost wrote for the panel. "That analysis is not for us to undertake in the first instance. Therefore, we vacate the unsealing order and remand for the district court."

The sealing fight is part of a patent lawsuit Finjan filed in 2017 against Juniper Networks. During discovery, Finjan handed over certain communications containing terms of Finjan's patent licenses with other companies, which were supposed to remain confidential, Finjan said.

In December 2018, Judge Alsup entered an order on Finjan's Daubert motions that included proposed fees and terms in the company's licensing discussions and temporarily sealed the order for two weeks. Finjan then requested to hold off on unsealing the order while it appealed the case, and the judge agreed to do so.

In the same month, a California federal jury found that Juniper didn't infringe Finjan's malware detection patent, and the verdict was later backed by Judge Alsup.

The parties' tit-for-tat following the patent trial had notably led Judge Alsup to lambast the "obstinate" attorneys and decry "all the BS that goes on" in patent litigation, with the judge refusing to grant Finjan's bid for a new trial last May.

U.S. Chief Judge Sharon Prost and U.S. Circuit Judges Evan J. Wallach and Kara F. Stoll sat on the panel for the Federal Circuit.

Counsel for the parties did not immediately return requests for comment Tuesday.

Finjan is represented by Juanita Rose Brooks, Francis J. Albert, Oliver Richards and Robert Courtney of Fish & Richard PC and Lisa Kobialka and Hannah Yunkyung Lee of Kramer Levin Naftalis & Frankel LLP.

Juniper is represented by Jonathan S. Kagan of Irell & Manella LLP.

The case is Finjan Inc. v. Juniper Networks Inc., case number 19-1837, in the U.S. Court of Appeals for the Federal Circuit.

--Additional reporting by Mike LaSusa and Hannah Albarazi. Editing by Haylee Pearl

[Paullee]

Lost again

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit ______________________
FINJAN, INC.,
Plaintiff-Appellant
v.
JUNIPER NETWORKS, INC.,
Defendant-Appellee
______________________
2019-2405
______________________
Appeal from the United States District Court for the
Northern District of California in No. 3:17-cv-05659-WHA,
Judge William H. Alsup.
______________________
JUDGMENT
______________________
JUANITA ROSE BROOKS, Fish & Richardson, PC, San Diego, CA, argued for plaintiff-appellant. Also represented
by FRANCIS J. ALBERT, OLIVER RICHARDS; ROBERT
COURTNEY, Minneapolis, MN.
JONATHAN STUART KAGAN, Irell & Manella LLP, Los
Angeles, CA, argued for defendant-appellee. Also represented by REBECCA CARSON, Newport Beach, CA.
______________________
Case: 19-2405 Document: 59 Page: 1 Filed: 10/09/2020
THIS CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
PER CURIAM (PROST, Chief Judge, WALLACH and
STOLL, Circuit Judges).
AFFIRMED. See Fed. Cir. R. 36.
ENTERED BY ORDER OF THE COURT

[Paullee]

Lost again

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit ______________________
FINJAN, INC.,
Plaintiff-Appellant
v.
JUNIPER NETWORKS, INC.,
Defendant-Appellee
______________________
2019-2405
______________________
Appeal from the United States District Court for the
Northern District of California in No. 3:17-cv-05659-WHA,
Judge William H. Alsup.
______________________
JUDGMENT
______________________
JUANITA ROSE BROOKS, Fish & Richardson, PC, San Diego, CA, argued for plaintiff-appellant. Also represented
by FRANCIS J. ALBERT, OLIVER RICHARDS; ROBERT
COURTNEY, Minneapolis, MN.
JONATHAN STUART KAGAN, Irell & Manella LLP, Los
Angeles, CA, argued for defendant-appellee. Also represented by REBECCA CARSON, Newport Beach, CA.
______________________
Case: 19-2405 Document: 59 Page: 1 Filed: 10/09/2020
THIS CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
PER CURIAM (PROST, Chief Judge, WALLACH and
STOLL, Circuit Judges).
AFFIRMED. See Fed. Cir. R. 36.
ENTERED BY ORDER OF THE COURT

[Paullee]

But the stories never stop
Fed. Circ. Iffy On Finjan Notice Argument In Malware IP Fight
By Britain Eakin

Law360 (October 7, 2020, 9:34 PM EDT) -- Finjan Inc.'s argument Wednesday that a California federal judge wrongly determined it didn't properly notify rival Juniper Networks Inc. that it allegedly infringed one of three malware patents and couldn't recover damages as a result met some resistance from members of a Federal Circuit panel.

Finjan appealed various aspects of its loss on all three patents in its case against Juniper, but the panel on Wednesday focused nearly all of its questions on the notice issue.

Juanita Brooks of Fish & Richardson PC, the attorney representing Finjan, told the panel during a remote hearing that a jury — not U.S. District Judge William Alsup — should have decided whether the substance of licensing negotiations and mention of the patent in a presentation during those talks were enough to satisfy the notice requirement.

Judge Alsup also erred, Brooks said, by faulting Finjan for not supplying an infringement claim chart for U.S. Patent No. 6,804,780 showing how Juniper's malware detection products allegedly infringed in determining that the cybersecurity company didn't meet the notice requirement.

Two panel judges, however, appeared unpersuaded by that contention.

"Where in the summary judgment order did the district court conclude you were required to, but did not, supply a claim chart?" U.S. Circuit Judge Evan J. Wallach said.

Brooks said it could be inferred from the order and that Judge Alsup told Finjan during a hearing that it would lose the summary judgment motion without a claim chart for the patent.

U.S. Circuit Judge Kara Farnandez Stoll chimed in here, saying she saw no reference to a claim chart in Judge Alsup's actual order.

Brooks pointed to a portion of the order saying that Finjan "attempted to cobble together a showing of actual notice," and since it specifically called out the two other patents at issue in the suit in the licensing negotiations and presentation, it should have done so for the third patent.

Judge Stoll pushed back again, noting the presentation mentioned roughly 17 patents.

"So, your point is that, even though it's one of 17 [patents], a reasonable jury could have thought that that was notice?" the judge added.

Brooks said that even if the licensing negotiations and presentation were not sufficient to establish notice, "it's a question of fact for the jury to decide."

U.S. Circuit Judge Sharon Prost pressed Juniper attorney Jonathan Kagan of Irell & Manella LLP about Finjan's assertion when it was his turn to argue, noting there were documents in the record to support Finjan's notice argument.

"Why isn't that really … a jury question and not one for the judge to decide on summary judgment?" Judge Prost asked.

Kagan said Finjan's presentation did not highlight the patent as one infringed by a security software company Juniper acquired in 2017, but as one that others had infringed. He went on to say that for Finjan to meet the notice requirement, it should have been more clear that Cyphort, the company Juniper acquired, was potentially infringing the patent, and since it wasn't clear, Judge Alsup didn't err.

Finjan accused Juniper in 2017 of infringing a bevy of patents, but only one of them — U.S. Patent No. 8,677,494 — made it to trial. A jury determined the following year that Juniper's malware detection products did not infringe.

The parties moved in August 2019 to voluntarily dismiss what was left of the suit, leaving district court decisions on just three of the patents at issue in Finjan's appeal.

The appeals court also grappled Wednesday with the question of damages. Finjan argued that Judge Alsup wrongly excluded certain Juniper products that should have been included in the damages base.

Juniper, meanwhile, argued that those products were rightfully excluded from the damages base because they did not infringe as sold.

The patents-in-suit are U.S. Patent Nos. 8,141,154; 6,804,780; and 8,677,494.

U.S. Circuit Judges Sharon Prost, Evan J. Wallach and Kara Farnandez Stoll sat on the panel.

Finjan is represented by Juanita Brooks of Fish & Richardson PC.

Juniper is represented by Jonathan Kagan of Irell & Manella LLP.

The cases are Finjan Inc. v. Juniper Networks Inc., case numbers 19-1837 and 19-2405, before the U.S. Court of Appeals for the Federal Circuit.

--Additional reporting by Mike LaSusa. Editing by Abbie Sarfo.

[lbcb123]

Going... going... gone.

Good luck with future endeavors. Made some money trading FNJN, but they still leave a bad taste in my mouth.

Hartstein and Noonan got over $5 for their shares and then failed to negotiate in good faith so they could milk the gravy train a bit longer. Noonan knew it would come out eventually and headed for the hills. Hartstein has no shame and stayed. What a system we have where this is all legal and there is no recourse.

[Paullee]

Guess it is all over except for the lawyers

[Paullee]

Yeah, I saw them this AM,

two, four, would be surprised to see more

[lbcb123]

Four lawsuits with basic descriptions here:

https://ir.finjan.com/sec-filings-email/content/0001104659-20-081815/a20-22252_3sc14d9a.htm

[lbcb123]

I should be able to find them once I set aside the time. Might be helpful to just copy and paste a few paragraphs of what is alleged for people who aren't familiar with how to navigate PACER. Thanks.

If I held shares now, I would be selling at $1.54 just in case it fell apart. Hundreds of thousands on the Bid at $1.53 for the sure sale.

[Paullee]

If you can't find them, I can send them to you

[lbcb123]

I will have to check it out on PACER. Hartstein and Noonan should have their profits disgorged from when they sold their remaining shares over $5. They had no more skin in the game and continued to collect salary and benefits while utterly failing to uphold their fiduciary duty to shareholders.

At least Noonan had enough sense to run before TSHTF.

[Paullee]

There are at least 2 suits already filed, but I don't hold a lot of hope

[lbcb123]

I gotta tell you, Paullee. I am always first and foremost a shareholder advocate. When I see management failing to act in the best interests of shareholders, I blow the whistle. We have butted heads in the past over my exposing the negative. That was an absolutely sickening chronology. I had to lift my jaw off the floor after finishing.

I don't even know what to tell you anymore. I hope they are held accountable, but we both know that is not likely.

Unreal!

[lbcb123]

Absolutely unbelievable and a clear failure to uphold their fiduciary duty to shareholders:

"On November 7, 2018, Party C submitted a revised non-binding proposal to acquire all of the stock of the Company for $5.10 per share in cash. Party C also requested the exclusive right to transact with the Company through November 30, 2018 with the possibility of extending such exclusivity through December 14, 2018. Party C explained several weeks of exclusivity was necessary due to the Company's unique business and the need for significant intellectual property and litigation due diligence and that this period of exclusivity was a requirement in order for them to commit the necessary time and financial resources to such due diligence effort."

THEY HAD AN OFFER OF $5.10 AND SOLD YOU OUT TO CONTINUE TO COLLECT SALARIES AND BENEFITS!

Hartstein sold his shares for over $5.00 as the offer leaked. Why would he do the deal now? He got his cash for shares and could still milk it for salary and benefits.

If there isn't a class-action lawsuit for failure to uphold his fiduciary duty to shareholders you are a shameful group!

They refused to continue negotiating in good faith and continued to spurn offers up to $3.50. $1.55 is a joke with what was on the table and you got SCREWED!

[Paullee]

just filed with the SEC, you should read the deal making section,

they should be marched out and shot