A recent Law 360 story by Dave Simpson, “Alsup OKs $5.9M From Finjan, Slams Kramer Levin Attys,” reports that Finjan Inc. must foot a $5.9 million portion of Juniper Networks' legal bill but doesn't deserve sanctions, U.S. District Judge William Alsup ruled, while noting that "in no way" does his order vindicate three Kramer Levin Naftalis & Frankel LLP partners who represented Finjan in the patent infringement suit.  Judge Alsup adopted in its entirety the May recommendation from special master Matthew Borden of Braunhagey & Borden LLP, rejecting Finjan's bid to nix the fees and Juniper's bid to score sanctions against the patent-licensing company.  Borden had recommended that Finjan pay the networking infrastructure provider 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 addition to agreeing with Borden's recommendation, Judge Alsup singled out for criticism three Kramer Levin partners who'd previously represented Finjan in the case.  "In no way does this order vindicate attorneys James R. Hannah, Lisa Kobialka, and Paul J. Andre," the judge wrote.  "Their conduct was improper and frustrated the fairness of the proceedings.  Judges in the future should take this into account when dealing with them in future cases."

Juniper had argued that Finjan deserved sanctions for, among other things, flip-flopping on its patent infringement theory in an attempt to artificially boost damages, presenting its facts-only damages theory to the jury after its damages expert was excluded, and misrepresenting a previous court decision to the court.  "Finjan's misrepresentation of a district court decision was 'reckless' but, even if a finding of recklessness alone satisfies the ... standard, this order finds that act, by itself, would not warrant sanctions," Judge Alsup said.

Special fee master Borden's May report came 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 for 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 in January.

Finjan, which sued Juniper in 2017 alleging it 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, it would owe less than $1.8 million if a jury found its products infringed the remaining patent in the case.  After the Federal Circuit affirmed Juniper's jury win on the only patent claim that had survived to trial, the company asked Judge Alsup to grant it attorney fees for fighting 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 patents and time spent on other facets of the litigation.