No it is not Art Harris the blogger. When I talked to Charles “Chip” Babcock in February 2009 we briefly discussed an article he had written in November 2007 about bloggers and lawsuits. In that article he had mused wouldn’t it be interesting if a blogger had the money to defend them self in a defamation suit. We talked about as more and more print media folded in this economy, and Mr. Babcock agreed, that more people were turning to the internet for news, whether a traditional media turned internet as, the Houston Chronicle, or “BLOGS”. I had mentioned to Mr. Babcock about him musing in November 2007 about what if a blogger had the money to fight a defamation case and if so would it change the rules and responsibility of blogs and their owners and/or protect other blogs under the First Amendment. I left there telling Mr. Babcock that my wish was that one day there was a blogger rich enough to hire him and fight a defamation case all the way. He smiled and just nodded not saying really anything.

Little did I know he was already representing a blogger in a defamation case right here in my home county, Smith County Texas, in the Tyler Federal Court in a federal suit about defamation from a blogger. That case went to a jury trial this past Monday, September 14. Mr. Babcock has received his wish, a blogger case that will go to a federal jury finally and all bloggers are watching it intently, including me. In fact I wish we had someone who could go to Tyler each day sit in the gallery and take notes so we could have real time reporting, but sadly that is not the case.

However other bloggers have picked up the case and are following it intently, like “The Prior Art: One reporter’s notes on the IP, [Intellectual Property] beat”.

The “professional” blogging community is watching this case as it will probably set standards by which other bloggers might rely on in Texas.

The background, an East Texas Trademark and Patent attorney, sued the blog called “Patent Troll Tracker”. Patent Troll Tracker, was a blog popular with IP lawyers and others interested in reports on companies that allegedly buy patents simply to bring infringement suits,” per the Texas Lawyer.

The statements being sued over are ones made by the “Troll Tracker” on October 17 and 18, 2007. The October 17, 2007 blog entry states in part beginning with the headline of “Troll Jumps the Gun, Sues Cisco Too Early,” no one can read the edited post because the Patent Troll Tracker has been set to “open to invited readers only”.

However, I regress. The post listed in part by The Prior Art, although showing 08 while the Texas Lawyer and dates in the court filings show 07 and in subsequent articles by The Prior Act does list the posts as October 2007. The posts that caused the uproar went like this:

The 10/17/07 Troll Tracker post begins:
“Well, I knew the day would come. I’m getting my troll news from Dennis Crouch now. According to Dennis, a company called ESN sued Cisco for patent infringement on October 15th, while the patent did not issue until October 16th. I looked, and ESN appears to be a shell entity managed by the President and CEO of DirectAdvice, an online financial website. And, yes, he’s a lawyer. He clerked for a federal judge in Connecticut, and was an attorney at Day, Berry & Howard. Now he’s suing Cisco on behalf of a non-practicing entity.

I asked myself, can ESN do this? I would think that the court would lack subject matter jurisdiction, since ESN owned no property right at the time of the lawsuit, and the passage of time should not cure that. And, in fact, I was right:”

The Troll Tracker goes on to say on October 17, 2007:
“One other interesting tidbit: Cisco appeared to pick up on this, very quickly. Cisco filed a declaratory judgment action (in Connecticut) yesterday, the day after ESN filed its null complaint. Since Cisco’s lawsuit was filed after the patent issued, it should stick in Connecticut.

Perhaps realizing their fatal flaw (as a couple of other bloggers/news items have pointed out), ESN (represented by Chicago firm McAndrews Held & Malloy and local counsel Eric Albritton and T. Johnny Ward) filed an amended complaint in Texarkana today – amending to change absolutely nothing at all, by the way, except the filing date of the complaint. Survey says? XXXXXX (insert “Family Feud” sound here). Sorry, ESN. You’re on your way to New Haven. Wonder how Johnny Ward will play there?”
On October 18, 2007 Troll Tracker went on to post in part; “…This is yet another example of the abusive nature of litigating patent cases in the Banana Republic of East Texas”.

That post was the equal in blog land of the shot heard around the world for Legal bloggers writing about intellectual property matters. It also caught our attention since Ken and I are blog owners now embroiled in a defamation suit about blogging. We both met Mr. Babcock during my discussion with him on February 8, 2009 about what if a blogger ever had the money to fight a suit, was blogging the new news media since bloggers can get things out to the world via the internet instantly.

The lawsuit expected to last two weeks has brought in the big hired gun media expert litigator and very expensive lawyer, Charles “Chip” Babcock of Oprah Winfrey fame, along with other lawyers as back up from the firm of Jackson Walker, where Mr. Babcock is a partner out of the Houston, Texas office.

Back to the jury trial now underway in the Tyler Texas federal court, not to be deterred lawyers Johnny Ward Jr. and Eric Albritton ,of East Texas decided to try and find the anonymous poster called Troll Tracker and if the blog owner had money, sue them.

How does a blog owner afford to hire the likes of Charles “Chip” Babcock and a full federal jury trial in East Texas where the first attorney up for trial, Mr. Albritton sued the blog owner, you ask?

Well Troll Tracker in March 2008 unmasked himself as Richard Frenkel, once Johnny Ward Jr. and Mr. Allbritton had the name they went to work and was ready to file, Mr. Albritton filed his defamation suit on June 16, 2008. Why did a successful east Texas lawyer sue a blogger? Well the blog owner ended up being Richard Frenkel whom filed his Answer on June 25, 2008 and “was” an in house attorney for Cisco System Inc. which also filed their Answer on June 25. Mr. Eric Albritton in court papers alleges that Frenkel’s superiors at Cisco knew of his blogging, in fact the case alleges it was part of Frenkel job, to blog about the East Texas federal courts. The why is as the Texas Lawyer says, “The suit was filed in U.S. District Court for the Eastern District of Texas, which attracts a huge number of the nation’s IP suits because of its so-called “rocket docket.”

Thus although it is not a “poor misfortune” blogger that Mr. Babcock took up the First Amendment rights of, it is in fact a trademark and patent blog which at that time was ran by a lawyer for Cisco Systems Inc., which by the way Richard Frenkel is no longer with Cisco; as Babcock ended his opening statement to the jury by noting that the lawsuits had succeeded in silencing Frenkel, who is now of counsel at Wilson Sonsini Goodrich & Rosati in California.

The jury has been picked, five (5) men and five (5) women, opening statements were finished on Monday Babcock expects the trial to last about two weeks. Another attorney was observing court on Monday, Johnny Ward Jr., who is another E.D. Texas lawyer with a similar lawsuit pending against Cisco Systems Inc. Ward is likely to be called as a witness in the Albritton lawsuit; his own case is scheduled to go to trial in February 2010.

So in the end Babcock is not fighting for the little blogger but instead is being paid by a corporation worth approximately 33 billion dollars and can well afford the very best in Texas hired guns in the field of media and litigation. Now how can Art Harris afford this kind of fire power, when CBS Productions Inc. file their Answer in Harris County District Court, we might have our answer.

What I will be watching in this is how an east Texas jury reacts between the statement of “Banana Republic of East Texas” opposed to Chip Babcock’s good ole country boy facade. Babcock is after all the very best and knows in what markets to be that good ole country boy and in other markets an arrogant assured lawyer as someone once told me that had watched him in action in a different setting.

DISCLOSURE: First I feel like I am doing disclosures with every article, however that said; Ken and I have met both Lin Wood and Chip Babcock, not that we ever wanted to meet either of them. Lin Wood comes across as an arrogant lawyer and makes no bones about just being that, as that is who he is. However Charles “Chip” Babcock, comes across like a good ole Texas boy, although not raised in Texas. He is disarming and very nice, I am told and have witnessed in the attacks on Rose Speaks.com and myself that he and his fellow lawyers at Jackson Walker can turn that disarming personality and cut you up into shreds.

I have been reading papers on this pending lawsuit for the last two days, and in the end once again it is about money and who has it to fight the good fight, and who does not. That said it is about defending a blogger, even if it was being done on behalf of a mega corporation; perhaps some good will come out of this suit for all of us, I can hope. I suggest reading The Prior Art for the latest in the trial as they appear to have someone in court.

You can pick up these papers in our download section open to All not just members of Rose Speaks.com, as I go through the mega amount of filings since June 16, 2008 any of interest will be loaded for your reading and discussing pleasure.

©Rose Turner
September 16, 2009
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