Listening to the heavily scripted Vringo (NASDAQ:VRNG) earnings call last week, my mind began to wander. Wouldn't it be nice if federal judge Raymond Alvin Jackson was giving this call? Call it mindless thought brought on by management's justified prudence in feeding us legally appropriate responses. The diet was felt when Q&A arrived and not one of the callers pulled from the caller queue identified their respective firms. Were they chosen in advance? Regardless the real Vringo shareholders are burning with anger. Human nature needs to hold someone accountable, for the post verdict painful share price drop, and Jackson is the leading scapegoat. The boards have been rather unkind to this pivotal federal judge who lies at the epicenter of the Vringo vs. Google (NASDAQ:GOOG) litigation. Notwithstanding that management is correct and the time frames of the motions are acceptable, Vringo investors remain without patience. They will comb heaven and earth to gain some personal advantage in knowing the mind of the man who holds the keys to Vringo's future.
A highly qualified judge
Raymond Alvin Jackson was nominated for his current position by President Bill Clinton on September 24, 1993. He was then confirmed by the United States Senate on November 20, 1993 and received a commission on November 22, 1993. Prior to his nomination he enjoyed a successful career in the Army JAG Corps, US Attorney of the Eastern District of Virginia and as an Adjunct lecturer at the Marshall-Wythe School of Law.
Federal judges are required by law to disclose their investment histories pursuant to the Ethics in Government Act which mandates annual financial disclosure by all senior federal personnel. We can all thank Richard Nixon, Watergate and the Saturday Night Massacres for that helpful disclosure. In 2011 the act encompassed incomes of $120,000 and higher. Looking at the last publicly available report, dated in 2011 and several of the preceding years, we see that Jackson has made a point of not owning any stocks or bonds. This should be viewed positively as other federal judges have not been so transparent in choosing to hear cases in which they have vested interests. By all accounts Judge Jackson has enjoyed a successful career and has been held in high regards by many. Looking back at his past decisions, and some of those literally pulled people off Death Row, it's easy to respect this judge.
Jackson un-friends Facebook, is Google next?
Of his most recent rulings, I take only one profound exception, his controversial decision in Bland v. Roberts, No. 04:11cv45, 2012 WL 1428198. In this case Jackson ruled that a person on the internet, using Facebook (NASDAQ:FB), was not protected by the 1st Amendment, clicking the "like" button did not amount to expressive speech. In other words, it's not the same as writing out a message and posting it on the site. So essentially "point and click" in this situation should have no 1st amendment protection. Why wouldn't this form of response be protected by free speech? Does Jackson's interpretation of what is online protected speech not include user interaction with known symbols that have clear universal meaning? His ruling would have us believe that. How could this be important to Vringo? In my interpretation Jackson was really rebuking Facebook. Moreover I am led to believe he was appalled with the thought that this online titan had crossed the line in trying to use its far reaching technology to somehow redefine 1st Amendment protections. One has to wonder if his thoughts of Google fall in line with this thinking. Recent history has shown Jackson ruling favorably toward Vringo, with the exception of willful infringement (prior to the Verdict) and the laches issue, both of which were missed opportunities by Vringo. While Bland v. Roberts is a 1st Amendment issue it does present, at the least, Jackson's perception of online titans over reaching into our 1st Amendment rights. Bland v. Roberts is on appeal and the ACLU has filed a friend of the Court brief. Needless to say Facebook is livid.
How will Jackson rule in the post trial motions?
In the motions set before him, it is my opinion that his decisions will lead to preserving the jury verdict, intact. This would also include maintaining the running royalty rate of 3.5%, based on the calculations of Dr. Becker whose testimony he granted such tremendous advantage in trial motions. Further reaffirming the confusing jury damage calculations. However Google's continued use of the infringed patents and desire not to settle could open up the possibility for a much higher running royalty rate. It's my belief Google will not settle, until they've been heard by the appellate court and Jackson's rulings bring us one step closer to the inevitable appeal. Alternative rulings swing open Pandora's box and this is already destined for appeal.