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`Case 3:17-cv-05659-WHA Document 661 Filed 06/10/21 Page 1 of 16
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`IRELL & MANELLA LLP
`Jonathan S. Kagan (SBN 166039)
`jkagan@irell.com
`1800 Avenue of the Stars, Suite 900
`Los Angeles, California 90067-4276
`Telephone: (310) 277-1010
`Facsimile: (310) 203-7199
`
`Rebecca Carson (SBN 254105)
`rcarson@irell.com
`Ingrid M. H. Petersen (SBN 313927)
`ipetersen@irell.com
`840 Newport Center Drive, Suite 400
`Newport Beach, California 92660-6324
`Telephone: (949) 760-0991
`Facsimile: (949) 760-5200
`
`Attorneys for Defendant
`JUNIPER NETWORKS, INC.
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`FINJAN, INC., a Delaware Corporation,
`)
`Case No. 3:17-cv-05659-WHA
`
`)
`
`DEFENDANT JUNIPER NETWORKS,
`Plaintiff,
`)
`INC.’S OBJECTION TO SPECIAL
`
`)
`MASTER’S REPORT AND
`vs.
`
`)
`RECOMMENDATION RE ATTORNEY’S
`
`)
`FEES AND EXPENSES (DKT. 658)
`JUNIPER NETWORKS, INC., a Delaware
`)
`Corporation,
`)
`
`
`)
`)
`)
`
`
`Defendant.
`
`
`
`10953699.
`
`
`
`
`DEFENDANT JUNIPER NETWORKS, INC.’S
`OBJECTION TO SPECIAL MASTER’S
`REPORT AND RECOMMENDATION
`Case No. 3:17-cv-05659-WHA
`
`

`

`Case 3:17-cv-05659-WHA Document 661 Filed 06/10/21 Page 2 of 16
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`
`
`I. 
`II. 
`III. 
`
`IV. 
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`A Registered Limited Liability
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`Professional Corporations
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`10953699.
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`
`TABLE OF CONTENTS
`
`Page
`INTRODUCTION ............................................................................................................... 1 
`LEGAL STANDARD ......................................................................................................... 1 
`ARGUMENT ...................................................................................................................... 3 
`Juniper respectfully requests that the Court include an express
`A. 
`finding of bad faith in its final order on fees. .......................................................... 4 
`Juniper respectfully requests that the Court order Finjan to pay
`$1,425,659.24 in sanctions. ..................................................................................... 9 
`CONCLUSION ................................................................................................................. 11 
`
`B. 
`
`- i -
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`DEFENDANT JUNIPER NETWORKS, INC.’S
`OBJECTION TO SPECIAL MASTER’S
`REPORT AND RECOMMENDATION
`Case No. 3:17-cv-05659-WHA
`
`

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`Case 3:17-cv-05659-WHA Document 661 Filed 06/10/21 Page 3 of 16
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`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`
`
`Cases
`
`TABLE OF AUTHORITIES
`
`
`
`
`
`Page(s)
`
`AdjustaCam LLC v. Amazon.com, Inc.,
`2018 WL 1335308 (E.D. Tex. Mar. 15, 2018) .........................................................................5, 8
`
`Amsted Indus. Inc. v. Buckeye Steel Castings Co.,
`23 F.3d 374 (Fed. Cir. 1994) ........................................................................................................2
`
`Anderson v. Asset Acceptance, LLC,
`2010 WL 1752609 (N.D. Cal. Apr. 29, 2010) .............................................................................2
`
`Arunachalam v. Int’l Bus. Machines Corp.,
`989 F.3d 988 (Fed. Cir. 2021) ......................................................................................................2
`
`B.K.B. v. Maui Police Dep’t,
`276 F.3d 1091 (9th Cir. 2002), as amended (Feb. 20, 2002) ...............................................2, 5, 6
`
`Chambers v. NASCO, Inc.,
`501 U.S. 32 (1991) ...........................................................................................................1, 2, 5, 8
`
`F.J. Hanshaw Enters., Inc. v. Emerald River Dev., Inc.,
`244 F.3d 1128 (9th Cir. 2001) ......................................................................................................2
`
`In re Girardi,
`611 F.3d 1027 (9th Cir. 2010) ......................................................................................................3
`
`Goodyear Tire & Rubber Co. v. Haeger,
`137 S. Ct. 1178 (2017) ...........................................................................................................9, 11
`
`Indiezone, Inc. v. Rooke,
`2014 WL 4354122 (N.D. Cal. Sept. 2, 2014) ...............................................................................9
`
`Intellectual Mgmt. Corp. v. Lee Yunn Enters., Inc. (U.S.A.),
`2009 WL 9137315 (C.D. Cal. Dec. 14, 2009) .............................................................................3
`
`MarcTec, LLC v. Johnson & Johnson,
`664 F.3d 907 (Fed. Cir. 2012) ..................................................................................................2, 9
`
`Moser v. Bret Harte Union High Sch. Dist.,
`366 F. Supp. 2d 944 (E.D. Cal. 2005) ..........................................................................................8
`
`Octane Fitness, LLC v. ICO Health & Fitness, Inc.,
`134 S. Ct. 1749 (2014) .............................................................................................................4, 9
`
`Oplus Techs., Ltd. v. Vizio, Inc.,
`782 F.3d 1371 (Fed. Cir. 2015) ....................................................................................................8
`
`10953699.
`
`
`- ii -
`
`DEFENDANT JUNIPER NETWORKS, INC.’S
`OBJECTION TO SPECIAL MASTER’S
`REPORT AND RECOMMENDATION
`Case No. 3:17-cv-05659-WHA
`
`

`

`Case 3:17-cv-05659-WHA Document 661 Filed 06/10/21 Page 4 of 16
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`Page(s)
`
`
`
`In re Personalweb Techs., LLC Pat. Litig.,
`2021 WL 796356 (N.D. Cal. Mar. 2, 2021) .................................................................................9
`
`Phonometrics, Inc. v. Westin Hotel Co.,
`350 F.3d 1242 (Fed. Cir. 2003) ....................................................................................................2
`
`Qualcomm Inc. v. Broadcom Corp.,
`2007 WL 9677112 (S.D. Cal. Oct. 29, 2007) ...............................................................................9
`
`Raniere v. Microsoft Corp.,
`2016 WL 4626584 (N.D. Tex. Sept 2, 2016) ...........................................................................2, 8
`
`Takeda Chem. Indus., Ltd. v. Mylan Labs., Inc.,
`549 F.3d 1381 (Fed Cir. 2008) .................................................................................................2, 9
`
`Taurus IP, LLC v. DaimlerChrysler Corp.,
`726 F.3d 1306 (Fed. Cir. 2013) ....................................................................................................7
`
`Thermolife Int’l, LLC v. Myogenix Corp.,
`2018 WL 325025 (S.D. Cal. Jan. 8, 2018) ...................................................................................4
`
`Statutes
`
`28 U.S.C. § 1927 ............................................................................................................................2, 3
`
`10953699.
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`DEFENDANT JUNIPER NETWORKS, INC.’S
`OBJECTION TO SPECIAL MASTER’S
`REPORT AND RECOMMENDATION
`Case No. 3:17-cv-05659-WHA
`
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`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`I.
`
`INTRODUCTION
`Although Special Master Borden reduced some of Juniper Networks Inc’s (“Juniper”)
`submitted attorneys’ fees, Juniper does not object to that reduction. Juniper does object, however,
`to the Special Master’s finding that a consideration of the expert fees and travel expenses the Court
`had ordered Juniper to provide to the Special Master was “premature” because the Court’s
`preliminary fees order “does not have an express finding of bad faith.” Dkt. 658 (Fees Order) at 20.
`Juniper believes that the Special Master should have reviewed these expenses so the Court could
`include them as part of its final fees award, should that award include a finding of bad faith.
`While Juniper believes the Special Master’s failure to review the expenses the Court ordered
`Juniper to provide to the Special Master is error, the impact of this error is negligible, as Finjan did
`not specifically challenge the reasonableness of any of the particular expenses Juniper submitted; it
`only challenged whether the Court intended to award them and broadly stated that the expenses were
`large. As the parties agree these expenses are awardable by the Court if its final award includes a
`finding of bad faith, Juniper urges this Court to include these expenses in its final fees order, along
`with a clear, express, and unambiguous statement that Finjan’s improper litigation conduct (which
`it already detailed in its preliminary fees order) constitutes bad faith. The only expenses for which
`Juniper is seeking recovery are the categories of expenses this Court previously identified in
`Paragraph 2 of its Order Re Attorney’s Fees And Costs And Appointment of Special Master (Dkt.
`649) (“Referral Order”)—specifically expert fees and travel expenses. As detailed in the March 22,
`2021 Declaration of Jonathan Kagan (Ex. 1), the vast majority of these costs were unnecessary fees
`that Juniper paid to experts who testified at trial in this case—a trial the Court already held would
`not have been necessary but for Finjan’s improper litigation conduct. The total amount of the costs
`for the categories identified by the Court in its Referral Order is $1,425,659.24.
`II.
`LEGAL STANDARD
`The parties do not dispute that this Court has the inherent power to permit Juniper to recover
`costs actually incurred in defending the underlying lawsuit. Indeed, the law on this is clear: “Courts
`of justice are universally acknowledged to be vested, by their very creation, with power to impose
`silence, respect, and decorum, in their presence, and submission to their lawful mandates.”
`
`10953699.
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`
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`DEFENDANT JUNIPER NETWORKS, INC.’S
`OBJECTION TO SPECIAL MASTER’S
`REPORT AND RECOMMENDATION
`Case No. 3:17-cv-05659-WHA
`
`

`

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`Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991). The purpose of these inherent powers is to allow
`the federal courts to “manage their cases and courtroom effectively and to ensure obedience to their
`orders.” F.J. Hanshaw Enters., Inc. v. Emerald River Dev., Inc., 244 F.3d 1128, 1136 (9th Cir.
`2001). “‘The imposition of sanctions’ under a court’s inherent power serves ‘the dual purpose of
`vindicating judicial authority . . . and making the prevailing party whole for expenses caused by his
`opponent’s obstinacy.’” Arunachalam v. Int’l Bus. Machines Corp., 989 F.3d 988, 997 (Fed. Cir.
`2021) (quoting Chambers, 501 U.S. at 46). “Use of this inherent authority is reserved for cases
`where the district court makes a “finding of fraud or bad faith whereby the ‘very temple of justice
`has been defiled.’” MarcTec, LLC v. Johnson & Johnson, 664 F.3d 907, 921 (Fed. Cir. 2012)
`(quoting Amsted Indus. Inc. v. Buckeye Steel Castings Co., 23 F.3d 374, 378 (Fed. Cir. 1994)).
`“[C]ourts may use sanctions in cases involving bad faith that cannot be otherwise reached by rules
`or statutes.” Takeda Chem. Indus., Ltd. v. Mylan Labs., Inc., 549 F.3d 1381, 1391 (Fed Cir. 2008).
`“Sanctions are available for a variety of types of willful actions, including recklessness when
`combined with an additional factor such as frivolousness, harassment, or an improper purpose.”
`B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1108 (9th Cir. 2002), as amended (Feb. 20, 2002).
`Under this standard, “misstatements of law and fact, coupled with an improper purpose, can be
`sanctioned under the inherent power of the court.” Anderson v. Asset Acceptance, LLC, 2010 WL
`1752609, at *4 (N.D. Cal. Apr. 29, 2010). Parties that engage “in a pattern of obfuscation, offering
`inconsistent theories and arguments and promising to produce evidence that never materialized,”
`and that fail to seize on multiple opportunities to correct deficient claims, are also subject to
`sanctions under the Court’s inherent powers. Raniere v. Microsoft Corp., 2016 WL 4626584, at *5
`(N.D. Tex. Sept 2, 2016), aff’d, 887 F.3d 1298, 1302 (Fed. Cir. 2018).
`Alternatively, under 28 U.S.C. § 1927, “[a]ny attorney or other person admitted to conduct
`cases in any court of the United States or any Territory thereof who so multiplies the proceedings
`in any case unreasonably and vexatiously may be required by the court to satisfy personally the
`excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” The
`Federal Circuit has held that sanctions are warranted when a patentee “continues to litigate [its]
`case” despite “knowing that its claim could not meet the standard for infringement.” Phonometrics,
`
`10953699.
`
`
`- 2 -
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`DEFENDANT JUNIPER NETWORKS, INC.’S
`OBJECTION TO SPECIAL MASTER’S
`REPORT AND RECOMMENDATION
`Case No. 3:17-cv-05659-WHA
`
`

`

`Case 3:17-cv-05659-WHA Document 661 Filed 06/10/21 Page 7 of 16
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`Inc. v. Westin Hotel Co., 350 F.3d 1242, 1248 (Fed. Cir. 2003); see also Intellectual Mgmt. Corp.
`v. Lee Yunn Enters., Inc. (U.S.A.), 2009 WL 9137315, at *4 (C.D. Cal. Dec. 14, 2009) (“The
`continued unreasonable assertion of infringement, particularly in the absence of an additional
`investigation or testing . . . unreasonably and vexatiously multiplied the proceedings in this case.”).
`“[A] finding that the attorneys recklessly raised a frivolous argument which resulted in the
`multiplication of the proceedings is also sufficient to impose sanctions under § 1927.” In re Girardi,
`611 F.3d 1027, 1061 (9th Cir. 2010).
`Juniper initially requested a finding of sanctions on March 28, 2019 (Dkt. 409), and the
`parties completed briefing on this issue on April 18, 2019. The Court deferred ruling on this motion
`“until the end of trial.” Dkt. 486 (Deferment Order). Juniper incorporated its sanctions motion into
`its motion for attorneys’ fees. See Dkt. 634 (Attorneys’ Fees Mot.) at 2.
`III. ARGUMENT
`In Section III of his Report and Recommendation, the Special Master found it “premature”
`to consider the reasonableness of the travel expenses and expert fees that the Court had ordered
`Juniper to provide to the Special Master in Paragraph 2 of the Referral Order. The Special Master
`reasoned that because “the court must make an express finding that the sanctioned party’s behavior
`‘constituted or was tantamount to bad faith’” before awarding sanctions, the Special Master should
`not consider these expenses unless and until the Court made a final determination of bad faith.
`Juniper respectfully disagrees. Juniper understands that the Court appointed the Special
`Master to do an initial analysis of the fees and costs the Court is considering awarding to Juniper,
`but that all final decisions about which fees and costs to assess will be made by the Court. Thus,
`there is no barrier to the Special Master determining the reasonableness the expenses the Court had
`ordered Juniper to provide to the Special Master, as the Court maintains its authority to award (or
`not award) all such expenses at its sole discretion; the Special Master’s Report and Recommendation
`is simply a tool the Court can use to help determine the appropriate amount to award, should it
`decide an award is appropriate.
`More significantly, and as discussed in detail below, the Court’s preliminary fees order
`detailed numerous instances of bad faith conduct by Finjan during the litigation—including some
`
`10953699.
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`
`- 3 -
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`DEFENDANT JUNIPER NETWORKS, INC.’S
`OBJECTION TO SPECIAL MASTER’S
`REPORT AND RECOMMENDATION
`Case No. 3:17-cv-05659-WHA
`
`

`

`Case 3:17-cv-05659-WHA Document 661 Filed 06/10/21 Page 8 of 16
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`behavior that the Court considered reporting to the California Bar for review.
`Ultimately, though, as Finjan did not specifically challenge any of the itemized expenses
`Juniper submitted, the Special Master’s decision not to review these entries is of no moment; Juniper
`has provided evidence that it actually incurred each of the itemized expenses, and that each expense
`was related to litigation of either the ’494 Patent or ’780 Patent. Finjan has not challenged this
`evidence or provided any contrary evidence. Accordingly, Juniper is entitled to a full recovery of
`the $1,425,659.24 it detailed in the March 22, 2021 Declaration of Jonathan S. Kagan.
`A.
`Juniper respectfully requests that the Court include an express finding of bad
`faith in its final order on fees.
`The determination of whether Finjan’s litigation misconduct amounts to bad faith is a matter
`within the Court’s sound discretion. Based on its prior findings that Finjan engaged in a pointless
`“whole song and dance” and “wasted everyone’s time and energy,” the Court has already reviewed
`the background of this case—including Finjan’s conduct—and has found Finjan’s conduct wanting.
`To avoid any potential further objections from Finjan, and to avoid any possible ambiguity, Juniper
`respectfully asks that the Court include an express finding of bad faith in its final fees order. See
`Thermolife Int’l, LLC v. Myogenix Corp., 2018 WL 325025, at *14 (S.D. Cal. Jan. 8, 2018) (“The
`Court has already reviewed this case under Octane Fitness, LLC v. ICO Health & Fitness, Inc., 134
`S. Ct. 1749 (2014) and determined the case is exceptional under the totality of the circumstances. .
`. . The Court has noted that its Order finding exceptionality ‘was ‘based on a finding of unfairness
`or bad faith in the conduct of the losing party, or some other equitable consideration.’ . . . Thus, the
`Court finds it appropriate to award expert fees in this case.”).
`There can be no doubt that the Court has already (1) done a detailed review of the factual
`record and (2) determined that Finjan engaged in a substantial amount of improper conduct. First,
`the Court has already noted that, “[a]fter discovering its infringement theory covered only a minute
`portion of Juniper’s revenue base, on the eve of trail Finjan flip flopped and came up with a new
`infringement theory, one which would capture more of Juniper’s products and inflate the target
`revenue base.” Dkt. 648 (Fees Order) at 2-3 (emphasis added). A reasonable party would have
`either cut its losses or accepted that it would need to adjust its expectations about the appropriate
`
`10953699.
`
`
`- 4 -
`
`DEFENDANT JUNIPER NETWORKS, INC.’S
`OBJECTION TO SPECIAL MASTER’S
`REPORT AND RECOMMENDATION
`Case No. 3:17-cv-05659-WHA
`
`

`

`Case 3:17-cv-05659-WHA Document 661 Filed 06/10/21 Page 9 of 16
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`damages. Not Finjan. Astonishingly, “Finjan tried to sneak this theory in with its expert-damages
`report.” Id. (emphasis added). Finjan’s refusal to forgo its baseless case regarding the ’494 Patent
`was bad-faith conduct. See AdjustaCam LLC v. Amazon.com, Inc., 2018 WL 1335308, at *5 (E.D.
`Tex. Mar. 15, 2018) (granting expert fees “this case became ‘objectively baseless’ after the Court’s
`Markman Order. . . Nonetheless, AdjustaCam pressed forward into expensive expert discovery”).
`Second, Finjan attempted to subvert the Court’s exclusion of Finjan’s artificially inflated
`damages theory, but the Court “caught” and blocked Finjan’s ruse to “sneak this theory” in front of
`the jury. Dkt. 648 (Fees Order) at 2-3 (emphasis added). As the Court noted, Finjan was
`“[u]ndaunted” by its ruling excluding Finjan’s artificially inflated damages model and “Finjan
`pressed ahead and tried to present to the jury a facts-only damages case.” Id. at 3. However, Finjan
`simply attempted to present the same improper arguments to the jury that the Court already
`excluded:
`Finjan made no effort at trial to allocate the target revenue base between allegedly
`infringing product functions and noninfringing functions. Put simply, Finjan’s
`facts-only damages case at trial evinced the same flaws that got its expert-
`damages report thrown out, artificially attempting to inflate revenue to which it
`would be entitled, assuming its infringement case succeeded before the jury. After
`hearing this case, then, the Court struck Finjan’s “woefully inadequate” damages
`case for the ’494 patent.
`
`Id. (emphasis added). Finjan flagrantly, and in bad faith, ignored the Court’s prior ruling regarding
`Finjan’s improper damages theory. See, e.g., B.K.B., 276 F.3d at 1108 (ignoring court’s pre-trial
`rulings supported sanctions); Chambers, 501 U.S. at 46 (“A court may impose sanctions where ‘a
`party ‘shows bad faith by . . . hampering enforcement of a court order.’”).
`Third, Finjan then sought to present improper, legally incorrect testimony to overcome the
`exclusion of its expert’s theory. As the Court noted, “[i]n one instance, a Finjan executive attempted
`to testify to what it would have sought from Juniper in negotiations, prejudicial testimony patently
`irrelevant to the question of the hypothetical royalty that two reasonable parties might have agreed
`to.” Dkt. 648 (Fees Order) at 3. According to the Court, “[t]his stunt earned Finjan a stern caution
`from the Court and a limiting instruction to the jury, striking the testimony.” Id. (emphasis added).
`Finjan’s “reckless misstatements of law and fact, when coupled with an improper purpose,” such as
`
`10953699.
`
`
`- 5 -
`
`DEFENDANT JUNIPER NETWORKS, INC.’S
`OBJECTION TO SPECIAL MASTER’S
`REPORT AND RECOMMENDATION
`Case No. 3:17-cv-05659-WHA
`
`

`

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`Law Partnership Including
`Professional Corporations
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`presenting arguments the Court excluded in this instance, “are sanctionable under a court’s inherent
`power.” B.K.B., 276 F.3d at 1108 (concluding district court did not violate its inherent authority to
`issue sanctions when counsel elicited testimony in violation of the district’s court’s orders on two
`pre-trial motions and a federal rule).
`Even putting aside damages issues, the Court found that Finjan’s entire liability case on the
`’494 Patent had been based on “smoke and mirrors,” which came to light in closing argument:
`It is true that along the way, I thought that -- I thought that you [Finjan] had a strong
`case on infringement. I was wrong about that. Mr. Kagan gave one of the best
`closing arguments, and it was not theatrics, but it was just calm, dispassionate
`explanation of a -- of points that I had not focused on that were your burden of
`proof, but he pointed it out. And I was very convinced at the end of that that he
`was right and that you had been wrong from the get-go on infringement. So those
`statements that I made along the way about how I -- that was just -- I was just drawn
`in by your smoke and mirrors. That’s all that happened on that. [Juniper’s closing
`argument] was just good, calm explanation of something that was complicated then
`finally the scales fell from my eyes. .
`
`Dkt. 382 (2/21/19 Hr’g Tr.) at 3:21-4:18 (emphasis added); see also Dkt. 387 (Order Denying Mot.)
`at 3-4. As the Court determined, Finjan had attempted to obscure the fact that the accused products
`did not store security profiles in a database organized according to a database schema by ignoring
`the actual location where security profiles were stored. Once Juniper had the opportunity to point
`this out in closing, Finjan’s entire house of cards collapsed.
`The Court also found Finjan acted in bad faith when litigating the ’780 Patent—the other
`subject of the Court’s preliminary fees order. “Finjan should have dropped the ’780 patent after that
`first round patent showdown, which granted Juniper summary judgment of noninfringement on
`claim 1 on the construction of the phrase ‘performing a hashing function.’” Dkt. 648 (Fees Order)
`at 3. Finjan, however, was “[u]ndeterred” and “kept the ‘substantially overlap[ping]’ claim 9, which
`included the same ‘performing a hashing function’ limitation, in the running for the second round
`of the showdown and even expanded the scope of accused products.” Id. “Yet when Juniper moved
`for summary judgment against claim 9, Finjan failed to oppose as to a majority of the accused
`products.” Id. As the Court succinctly stated, “[j]ust as both parties have a joint duty to frame
`dispositive issues with good judgment, each party has an individual duty to continually reevaluate
`
`10953699.
`
`
`- 6 -
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`DEFENDANT JUNIPER NETWORKS, INC.’S
`OBJECTION TO SPECIAL MASTER’S
`REPORT AND RECOMMENDATION
`Case No. 3:17-cv-05659-WHA
`
`

`

`Case 3:17-cv-05659-WHA Document 661 Filed 06/10/21 Page 11 of 16
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`the viability of its claims. Finjan shirked its end of both of those duties and again wasted everyone’s
`time and energy in instigating this motion aspect.” Id. (emphasis added). Finjan’s failure to drop
`its pursuit regarding the ’780 Patent qualifies as bad faith. Taurus IP, LLC v. DaimlerChrysler
`Corp., 726 F.3d 1306, 1329 (Fed. Cir. 2013) (upholding district court’s bad faith determination
`because “a party cannot assert baseless infringement claims and must continually assess the
`soundness of pending infringement claims, especially after an adverse claim construction”).
`Further, Finjan misstated facts about notice to Juniper in an effort to pursue its claims
`regarding the ’780 Patent. According to the Court, “Finjan’s case as to the few remaining accused
`products, which turned on whether it had provided actual or constructive notice (through product
`marking) of the ’780 patent to Juniper before its expiration, suffered its own unforced errors.” Dkt.
`648 (Fees Order) at 4. “On the constructive notice front, Finjan attempted to relitigate concessions
`it had already made to the Court in previous hearings.” Id. At the hearing regarding Juniper’s fees
`motion, the Court described Finjan’s factually incorrect assertion:
`I do have a distinct memory of a declaration that your side put in, somebody in the
`Finjan company, that said flat out that particular patent had been discussed verbally
`with someone from Juniper. And I don’t remember if I actually made a ruling at
`the time, but I remember thinking, “Okay. That’s probably enough to go to the jury
`that there was – somebody’s willing to say under oath that they had that
`conversation.”
`
`And then it turned out a bit later in the case that there was a recording made, I
`believe by somebody at Juniper, of that very conversation and they transcribed it
`and it was not true. It was not true that that patent was mentioned.
`
`So I was very disturbed by that. I’ve got to tell you, I came close to referring that
`to the U.S. Attorney but I did not. But I want you to know this is the kind of stuff
`that goes on in your patent cases -- in all patent cases where somebody just says,
`“Oh, by the way, oh, yeah, I can say that. That’s the ticket. I told them about that.
`Yeah, it’s verbal. I told them.” And it really does burn me up that that happened.
`So I want to give you a fair chance to respond to that point.
`
`Ex. 6 (1/7/21 Hr’g Tr.) at 21:5-22:1. Finjan’s factual misstatements qualify as bad-faith conduct.
`Finjan also misstated law to further pursue its claims regarding the ’780 Patent. As the Court
`summarized, “Finjan misrepresented, though perhaps not intentionally at least recklessly, a
`favorable district court decision as having been affirmed on those relevant grounds by the Federal
`
`10953699.
`
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`- 7 -
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`DEFENDANT JUNIPER NETWORKS, INC.’S
`OBJECTION TO SPECIAL MASTER’S
`REPORT AND RECOMMENDATION
`Case No. 3:17-cv-05659-WHA
`
`

`

`Case 3:17-cv-05659-WHA Document 661 Filed 06/10/21 Page 12 of 16
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`Circuit when, in fact, it had not been.” Finjan’s improper statements further demonstrate bad faith.
`See Moser v. Bret Harte Union High Sch. Dist., 366 F. Supp. 2d 944, 988 (E.D. Cal. 2005) (imposing
`sanctions pursuant to FRCP 11, § 1927 and the court’s inherent power against the defendant and its
`counsel for engaging “in bad faith litigation tactics through their systematic and repeated
`misstatements of the record, frivolous objections to Plaintiff’s statement of facts, and repeated
`mischaracterizations of the law”).
`Each of these instances, standing alone, demonstrate bad faith. When taken together, there
`can be no legitimate questions that Finjan engaged in an extended pattern of bad faith conduct
`throughout the litigation. See, e.g., AdjustaCam, 2018 WL 1335308, at *5; Chambers, 501 U.S. at
`46 (“entire course of conduct throughout the lawsuit evidenced bad faith and an attempt to perpetrate
`a fraud on the court”); Oplus Techs., Ltd. v. Vizio, Inc., 782 F.3d 1371, 1373, 1376 (Fed. Cir. 2015)
`(vacating district court’s denial of expert fees where the plaintiff’s “malleable expert testimony and
`infringement contentions” caused “a frustrating game of Whack–A–Mole throughout the
`litigation”); Raniere, 2016 WL 4626584, at *5 (costs awarded where plaintiff refused to voluntarily
`dismiss case).
`Raniere is particularly instructive. In that case, the court concluded the “Plaintiff acted in
`bad faith and vexatiously multiplied the[] proceedings.” 2016 WL 4626584, at *5. The court noted
`that it “identified the standing issue as problematic early in the litigation and gave Plaintiff multiple
`opportunities to address the Court’s concerns.” Id. However, “Plaintiff engaged in a pattern of
`obfuscation, offering inconsistent theories and arguments and promising to produce evidence that
`never materialized.” Id. According to the court, the “Plaintiff failed to voluntarily dismiss his
`claims when confronted with the fatal defects in his case and instead forced this Court and
`Defendants to expend significant resources to resolve the threshold issue of standing.” Id. In light
`of this behavior, the court determined that “[t]his deplorable conduct constitutes an abuse of the
`judicial process and warrants an imposition of sanctions under the Court’s inherent powers.” Id.
`(awarding attorney’s fees and costs).
`The same is true here. Despite having multiple instances, and an obligation, to evaluate the
`merits of its claims throughout the action, Finjan consistently plowed ahead with full steam. As the
`
`10953699.
`
`
`- 8 -
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`DEFENDANT JUNIPER NETWORKS, INC.’S
`OBJECTION TO SPECIAL MASTER’S
`REPORT AND RECOMMENDATION
`Case No. 3:17-cv-05659-WHA
`
`

`

`Case 3:17-cv-05659-WHA Document 661 Filed 06/10/21 Page 13 of 16
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`Court characterized it, Finjan’s “whole song and dance came to nothing.” Dkt. 648 (Fees Order) at
`3. While the Court’s initial fees ord