NetScout Systems' complaint against Gartner just got a little thinner — and a lot less entertaining for anyone who enjoys perusing page upon page of "prejudicial, immaterial, unnecessary" and improper allegations that "attempt to plead evidence rather than facts."
Connecticut Superior Court Judge Charles T. Lee ordered NetScout attorneys to revise the complaint to eliminate what Gartner's team had characterized as "references to law that does not apply; industries that are not involved; historical scandals that are irrelevant; and nonparties having nothing to do with the dispute."
The revised complaint, filed this week, is a mere 49 pages — nine pages lighter than the original one Westford, Mass.-based NetScout filed last August against Stamford, Conn.-based Gartner.
Paying to Play
NetScout filed a lawsuit last August over allegations of "corporate defamation" arising out of Gartner's rating of the company as a "Challenger" rather than a "Leader."
In October, Gartner's team struck back with a 62-page request to revise the complaint, claiming the information technology company intentionally muddied a straightforward case with "unnecessary, repetitious, scandalous, impertinent [and] immaterial" allegations designed to "poison the mind of the jury and the court."
Attorneys typically file a request to revise to separate claims, obtain a more complete or particular statement of allegations, or to delete what they consider impertinent allegations.
Gartner attorneys asked the court to rule on 39 proposed revisions that they claimed were everything from irrelevant to defamatory.
Late last month, Judge Lee ruled Gartner attorneys Frederick Gold, Andrew Zeitlin and Diane Polletta, all of Stamford-based Shipman & Goodwin, had largely made valid points, and ordered NetScout to revise the complaint.
The new document continues to revolve around one key contention: Namely, that Gartner defamed NetScout in one of its Magic Quadrant (MQ) industry reports because it was unwilling to "pay to play." The complaint alleges:
Gartner has a 'pay-to-play' business model that by its design rewards Gartner clients who spend substantial sums on its various services by ranking them favorably in its influential Magic Quadrant research reports ('Magic Quadrant reports') and punishes technology companies that choose not to spend substantial sums on Gartner services."
In its first ever Magic Quadrant report for the Network Performance Monitoring and Diagnostics (NPMD) market, published last March, Gartner did not rank NetScout as a "Leader." Instead, it rated it a "Challenger" — "essentially, a technology company that saddles its customers with outdated technology," NetScout attorneys complained. They continued:
"Gartner stated falsely that NetScout is 'currently struggling to deal with new technical demands and rising expectations' and has 'architectures, feature sets and pricing structures that require modernization (often in progress) to better compete with those in the Leaders quadrant.'"
Gartner, on its website, notes that "Challengers execute well today or may dominate a large segment, but do not demonstrate an understanding of market direction."
More Facts, Fewer Theories
However, there are some significant changes in the new document. The revised complaint is missing much of the rhetoric, subjectivity and loosely constructed connections contained in the original, including:
- Links between the technology analysts at Gartner and financial analysts on Wall Street ("While Gartner's business practices are not regulated by the [Securities and Exchange Commission] SEC, its business practices are no less unscrupulous or unethical")
- Claims that even company founder Gideon Gartner, who is no longer affiliated with the company, thinks Gartner's MQ's are "overused, misused and abused"
- Unnamed "IT industry vendors, observers, commentators and journalists" in a 2006 InformationWeek story, including one who was quoted as saying that the MQ's are "all based on how much you do or might spend [on Gartner], as far as I'm concerned"
NetScout has changed not only its complaint but also its lead attorney. Michael T. Ryan, a partner with Ryan Ryan Deluca in Stamford, filed the new complaint. The revision makes no reference to Michael Blanchard, a partner with Hartford-based Morgan, Lewis & Bockius (formerly Bingham McCutchen), who filed the earlier complaint.
Here We Go Again
Gartner is showing more consistency: In its latest MQ for NPMD, released last week (registration required), NetScout is once again rated as a Challenger, alongside Cisco and CA Technologies.
Gartner analysts Vivek Bhalla, Colin Fletcher and Gary Spivak acknowledge NetScout "did not respond to requests for supplemental information and/or to engage in Gartner's standard procedures" in conjunction with the preparation of the MQ, and that the rating is "based on other credible sources, including previous vendor briefings and interactions, the vendor's own marketing collateral, public information and discussions with end users who either have evaluated or deployed each NPMD product."
NetScout's strengths, they wrote, are its "large and loyal" customer base, its successful acquisition and integration of complementary technologies and its patented Adaptive Session Intelligence technology, which "provides technical differentiation in support of growing scalability requirements."
It's weaknesses: premium pricing, tendency to acquire overlapping technologies and its lack of full application performance monitoring (APM) capabilities.
Not surprisingly, NetScout was unhappy. In a press release, NetScout called the ranking "another flawed Magic Quadrant report," adding:
Gartner’s new report does not contain any current information from NetScout about NetScout’s product offerings and overall strategies or about its future initiatives and product road maps. Despite this admission and lack of highly relevant company information, Gartner continues to present itself in a position of informed authority."
NetScout further noted that it "continues to vigorously pursue its legal remedies."
The case is scheduled to go to trial in next February.