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| IBM Moves to Strike 3 of SCO's Affirmative Defenses as Defective |
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Thursday, November 13 2003 @ 03:26 PM EST
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IBM has filed a Motion to Strike Affirmative Defenses and a Memorandum in Support with the court. They are providing SCO a lesson in the law. If you charge someone with fraud, they point out, you are supposed to tell exactly what the facts are that constitute the fraud. Otherwise, your affirmative defense is defective:
"Under Rule 12(f), the Court 'may order stricken from any pleading any insufficient defense'. Fed. R. Civ. P. 12(f). Rule 9(b), in turn, requires that, '[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.'
"As detailed in IBM's Memorandum in Support of Motion to Strike Affirmative Defenses, SCO's Fifth, Fifteenth and Nineteenth affirmative defenses -- which allege fraud and inequitable conduct -- are improperly pleaded under Rule 9(b) and thus should be stricken. Specifically, SCO fails to allege any facts concerning the fraud that IBM is alleged to have committed. Under any interpretation of Rule 9(b)'s requirements, therefore, SCO's affirmative defenses are defective."
I guess SCO is so used to making accusations without any proof in the media, they forgot that in a court of law, you do have to state your case "with particularity". An hors d'oevres from the Memorandum: "SCO may not properly accuse IBM of fraud in the hope that it may be able to cobble together some evidence of alleged wrongdoing during discovery. . . .
"IBM should not have to expend any effort in this case defending against
SCO's claims of fraud or inequitable conduct, when SCO has not offered
even the barest of specifics about its allegations."
In case you forgot, here are the three affirmative defenses from SCO's Answers to IBM's Amended Counterclaims that IBM is asking to have stricken:
"FIFTH AFFIRMATIVE DEFENSE
"IBM's claims are barred by fraud, illegality, collusion, conspiracy and/or lack of clean hands.
"FIFTEENTH AFFIRMATIVE DEFENSE
"On information and belief, one or more of the copyrights at issue is, or may be, unenforceable by reason of IBM's inequitable conduct, acts or omissions before the United States Patent and Trademark Office.
"NINETEENTH AFFIRMATIVE DEFENSE
"On information and belief, the #746 Patent or one or more of the other patents at issue is, or may be, unenforceable by reason of IBM inequitable conduct, acts or omissions before the United States Patent and Trademark Office." If IBM prevails on this motion, then it won't have to discuss them any further and they are out of the trial. Also out of discovery. Ooh, those smoothies at IBM. Why bother to fight like cats and dogs, when you can just go for the jugular? You can read the Federal Rules of Civil Procedure 12(f)
here. Rule 9(b) is here. Remember how I keep telling you the law is like chess, only with people? A series of seemingly small, quiet moves, and then finally, if you've researched and planned well, suddenly they are on the run. IBM has begun its calculated moves.
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| Authored by: Anonymous on Thursday, November 13 2003 @ 03:58 PM EST |
I love this...
I've learned more about our legal system through SCO's nonsense than through
several seasons of Law and Order...
Thanks for all the great work PJ![ Reply to This | # ]
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| Authored by: rgmoore on Thursday, November 13 2003 @ 04:05 PM EST |
Those guys from Cravath, Swaine, and Moore have apparently decided that it's
no longer necessary to be polite. This wording:
SCO may not
properly accuse IBM of fraud in the hope that it may be able to cobble together
some evidence of alleged wrongdoing during discovery
has just
the right amount of blunt, rude honesty. It's about as harsh as anything I've
seen in their pleadings so far, but nobody can claim that it's entirely
undeserved. The interesting thing is whether this has some broader purpose.
There's a definite implication that IBM is worried about this because other
moves by SCO meet the same pattern, e.g. refusing to specify which code is
infringing in the hopes that they'll be able to find something by looking over
AIX. I can't help but wonder if they're trying to set the judge up with this
idea in the hopes that it will help them in their Motion to Compel and the later
Motion to Dismiss. ---
Behind every sleazy lawyer, there's a sleazy client. [ Reply to This | # ]
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- Does IBM outsource is Lawyers? - Authored by: Anonymous on Thursday, November 13 2003 @ 08:16 PM EST
- Judge's mood? - Authored by: Anonymous on Thursday, November 13 2003 @ 09:25 PM EST
- Judge's mood? - Authored by: Anonymous on Thursday, November 13 2003 @ 11:10 PM EST
- What a Gem! - Authored by: Anonymous on Thursday, November 13 2003 @ 11:19 PM EST
- What a Gem! - Authored by: Ric on Friday, November 14 2003 @ 12:02 PM EST
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| Authored by: rand on Thursday, November 13 2003 @ 04:05 PM EST |
Well, IBM warned them...IBM's attitude all along has been "put up or shut
up". This ought force some put-up...if SCOG has anything put-upable.
---
Dim gstrIANAL As String
(Oh, Lord, get me off this project...)[ Reply to This | # ]
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- OT, Rand's Sig. - Authored by: Anonymous on Thursday, November 13 2003 @ 04:58 PM EST
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| Authored by: overshoot on Thursday, November 13 2003 @ 04:05 PM EST |
It's not that SCO's "affirmative defenses" were anything to worry
about as such. This was more a matter of pointing out, before the starting gun,
that the other runner has his shoes on the wrong feet. Totally polite, but the
content is just utterly dismissive and contemptuous. A deadly insult delivered
offhand.[ Reply to This | # ]
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| Authored by: sscherin on Thursday, November 13 2003 @ 04:10 PM EST |
Great line here
Based on the generality of its pleading, it is fair to
assume that SCO has no facts to support its affirmative defenses, but rather
asserted them to "launch[]...a 'fishing expedition' allowing [it] to embark on
wide-ranging discovery upon a thimble-full of facts"
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, November 13 2003 @ 04:11 PM EST |
Showing that SCO is in the habit of making unsubstantiated claims?
Hoping to get an easy ruling in this vein before 12/5?
Part of pointing out a pattern of such behavior for some future motion?
Maybe?[ Reply to This | # ]
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- IBM Moves to Strike 3 of SCO's Affirmative Defenses as Defective - Authored by: knutsondc on Thursday, November 13 2003 @ 04:38 PM EST
- IBM Moves to Strike 3 of SCO's Affirmative Defenses as Defective - Authored by: Anonymous on Thursday, November 13 2003 @ 04:49 PM EST
- IBM Moves to Strike 3 of SCO's Affirmative Defenses as Defective - Authored by: Anonymous on Thursday, November 13 2003 @ 05:09 PM EST
- Ok we're just plain OT here - Authored by: Flower on Thursday, November 13 2003 @ 06:11 PM EST
- Legal Question - What would be a valid response to save SCO's bacon? - Authored by: John Douglas on Thursday, November 13 2003 @ 06:15 PM EST
- IBM Moves to Strike 3 of SCO's Affirmative Defenses as Defective - Authored by: Anonymous on Thursday, November 13 2003 @ 06:27 PM EST
- Unhelpful comments - Authored by: miniver on Thursday, November 13 2003 @ 06:52 PM EST
- IBM Moves to Strike 3 of SCO's Affirmative Defenses as Defective - Authored by: Anonymous on Thursday, November 13 2003 @ 07:30 PM EST
- IBM Moves to Strike 3 of SCO's Affirmative Defenses as Defective - Authored by: Anonymous on Thursday, November 13 2003 @ 08:11 PM EST
- IBM Moves to Strike 3 of SCO's Affirmative Defenses as Defective - Authored by: Anonymous on Thursday, November 13 2003 @ 08:36 PM EST
- IBM Moves to Strike 3 of SCO's Affirmative Defenses as Defective - Authored by: knutsondc on Thursday, November 13 2003 @ 09:06 PM EST
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| Authored by: overshoot on Thursday, November 13 2003 @ 04:15 PM EST |
| "Consistent with SCO's apparent strategy of trying to keep IBM in the dark as to
its contentions ... SCO sets forth affirmative defenses based on fraud that fall
far short of these requirements." Don't hold back, Mr. Sullivan, tell the
Court what you really think of SCO and its Counsel! [ Reply to This | # ]
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| Authored by: knutsondc on Thursday, November 13 2003 @ 04:16 PM EST |
| Yet another piece of first-class work from IBM's legal team -- short, to the
point, and essentially unanswerable. The cases applying Rule 9(b) of the
Federal Rules of Civil Procedure in the manner IBM requests are legion. None of
the propositions IBM argues is in the least bit controversial; they are covered
in every law school's first-year Civil Procedure class. I will be very curious
to see whether SCO even attempts to respond and, if so, how they intend to pass
the "straight-faced" test.
Darron
Darron C. Knutson
Attorney at
Law
dckATdknutsonlaw.com
Just because you've read this posting doesn't
make you a client of mine. In
posting my comments here, I do not undertake any
professional duty of any kind
to anyone. By posting on groklaw, I intend only to
provide some general
information about the legal process and about some of the
law relevant to
matters under discussion here. My postings should not be
construed as legal
advice for any particular person reading them and no one
should rely on them in
the conduct of their business or other important matters. [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, November 13 2003 @ 04:19 PM EST |
Future news prediction?
SCO: Moves to strike six of IBM's affirmative defenses, the 12th, 15th, 19th,
23rd, 437th and 699th
IBM: We only have ten affirmative defenses
SCO: Even more reason to strike them![ Reply to This | # ]
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- ROTL - Authored by: sela on Thursday, November 13 2003 @ 04:35 PM EST
- ROTL - Authored by: Anonymous on Thursday, November 13 2003 @ 05:14 PM EST
- ROTL - Authored by: overshoot on Thursday, November 13 2003 @ 05:22 PM EST
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| Authored by: brenda banks on Thursday, November 13 2003 @ 04:35 PM EST |
" If IBM prevails on this motion, then it won't have to discuss them any
further and they are out of the trial. Also out of discovery. Ooh, those
smoothies at IBM. Why bother to fight like cats and dogs, when you can just go
for the jugular? "
but IBM can still use them for their defense? or this is accepted as uncontested
fact ?
the patents are correct,the copyrights are correct?
br3n
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br3n[ Reply to This | # ]
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| Authored by: rand on Thursday, November 13 2003 @ 04:56 PM EST |
Anyone notice IBM's quoting Judge Kimball?
As this Court
has put it, allegations of fraud should not be made "as a pretext for the
discovery of unknown wrongs." Anderson 157 F..."
The Honorable
Dale A. Kimball sat on Anderson v. First Security Corporation in May, 2000. You
can't get any better references than that!
God, I love to watch the
masters at work (which is probably why I sat up all night and watched those
stupid poker championships...).
---
Dim gstrIANAL As String
(Oh,
Lord, get me off this project...) [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, November 13 2003 @ 05:12 PM EST |
Bwahaha. Anybody notice footnote 4? I hadn't noticed that in the original SCO
filing, but...
SCO:
"On information and belief, one or more of the copyrights at issue is, or
may be, unenforcable by reason of IBM's inequitable conduct, acts, or omissions
before the US Patent and Trademark office."
IBM footnote 4:
"We assume SCO is alledging inequitable conduct before the US Copyright
Office, notwithstanding its reference to the Patent and Trademark
office."
I guess SCO's attempts to muddle all forms of IP together have confused even
them.[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, November 13 2003 @ 05:19 PM EST |
My favorite in the Memorandum in Support is the footnote 4 at the bottom of page
4.
"We assume SCO is alleging inequitable conduct befor the United States
Copyright Office, notwithstanding its reference to the United States Patent and
Trademark Office."
Are SCO's attorneys ignorant or lazy? Geeze, you'ld think they would at least
have the correct governmental agency.
PJ: You keep getting better & better. Keep up the good work!
[ Reply to This | # ]
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| Authored by: brenda banks on Thursday, November 13 2003 @ 06:06 PM EST |
i appreciate your postings
they are informative and very helpful
thank you and i can understand why you need a disclamer
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br3n[ Reply to This | # ]
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- Darron - Authored by: knutsondc on Thursday, November 13 2003 @ 06:46 PM EST
- Darron - Authored by: tazer on Thursday, November 13 2003 @ 09:01 PM EST
- Darron - Authored by: rgmoore on Friday, November 14 2003 @ 01:09 AM EST
- Darron - Authored by: arch_dude on Friday, November 14 2003 @ 04:34 AM EST
- Darron - Authored by: rgmoore on Friday, November 14 2003 @ 11:12 AM EST
- Darron - Authored by: Anonymous on Friday, November 14 2003 @ 01:35 PM EST
- Darron - Authored by: rgmoore on Friday, November 14 2003 @ 02:43 PM EST
- Darron - Authored by: Nathan Hand on Thursday, November 13 2003 @ 09:03 PM EST
- Darron - Authored by: Queenslander on Thursday, November 13 2003 @ 06:52 PM EST
- Darron - Authored by: BrianW on Thursday, November 13 2003 @ 10:07 PM EST
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| Authored by: Jude on Thursday, November 13 2003 @ 06:07 PM EST |
Judge: "Do you, in fact, have any case at all?"
SCO: "No, your honor, we've been deliberately wasting your time."
Judge: "Then I shall have to shoot you."
[ Reply to This | # ]
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| Authored by: brenda banks on Thursday, November 13 2003 @ 06:58 PM EST |
http://www.linuxinsider.com/perl/story/32140.html
"SCO spokesperson Mark Modersitzki told LinuxInsider that while the new
subpoenas are not a direct response to IBM's subpoenas, SCO has filed its own
subpoenas for Linux creator Linus Torvalds, Free Software Foundation president
Richard Stallman, Transmeta and the Open Source Development Lab, both of which
have employed Torvalds."
---
br3n[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, November 13 2003 @ 07:11 PM EST |
Firstoff, as i am from the UK, i find this whole case an interesting insight
into the inner workings of US corporate and legal ethics and methods, you
couldnt pay for this kind of entertainment.
Though i am folowing the case because of the legal implications this may have
to me as a Llinux solutions developer.
to the specifics:
I find it interresting that IBM has included as a footnote in their memorandum
on page 5, footnote 5:
"are uninforceable because during the prosecution of the patents the
applicant willfully or with gross negligence committed certain inequitable acts
that misled the Patent and Trademark Office"
Could this be a pointer to the current SEC litigation mentioned eariler on
Grokllaw about Ransom Love and other SCO officers being involved with investment
banks in hyping the share price of companies, and using the shares as part of a
chas purchase. i.e. the company with the original Unix patents?
could a legal eage comment :) ?
Tim.
[ Reply to This | # ]
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| Authored by: mac586 on Thursday, November 13 2003 @ 07:50 PM EST |
If you've read IBM's motions and this thread, and you want to grin a little
longer, visit the Quote DB page here at Groklaw. Query on the "quote contains"
== "discovery"; and "quotee" == McBride.
Some of my
favorites:
- "We'd be fine to go to court just on what we have before
discovery"
- "The reality is that we are going into discovery right now
and that might be the vehicle to be able to investigate what we need there
anyway."
I can just imagine the scope of McBride's stategic plan,
finely laid out in his Franklin Planner. Where does he find his inspiration?[ Reply to This | # ]
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| Authored by: Khym Chanur on Thursday, November 13 2003 @ 08:25 PM EST |
So, if the lawyers for one side makes a mistake in their affirmative defenses
such that they're defective, then they can't correct their mistake? It's
"game over" for those defenses? Seems kind of harsh. (Not that I'm
defending SCO, I'm just talking in general)[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, November 13 2003 @ 08:28 PM EST |
Next on the docket, SCO to claim that some of IBM's arguments are
insufficiently pled.[ Reply to This | # ]
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| Authored by: Beyonder on Thursday, November 13 2003 @ 10:51 PM EST |
Only one piece of advice I can think of, and it's not really helpful to them
(but it is to the rest of us), for SCO and everyone else...
whatever you do, don't try to take on IBMs IP legal team. I mean, really, get a
clue...
Can you say "doh!" ? I thought you could...
-if clues were shoes, SCO would be barefoot...[ Reply to This | # ]
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| Authored by: arch_dude on Friday, November 14 2003 @ 05:22 AM EST |
IANAL, but it looks to me like IBM is trying to take advantage of an additional
piece of sloppy legal work here.
IBM is moving to strike SCO's fifth affirmative defense:
"IBM's claims are barred by fraud, illegality, collusion, conspiracy,
and/or lack of clean hands."
IBM's move to strike is based rule 9(b),which states that
"[i]n all averments of fraud or mistake, the circumstances constituting
fraud or mistake shall be stated with particularity."
But if the fifth affirmative defense is stricken, then, in addition to losing
"fraud," SCO also loses "illegality, collusion, conspiracy,
and/or lack of clean hands."
I suspect that rule 9(b) or some equivalent will require specificity for
illegality, collusion,and conspiracy, but if this defense is stricken, SCO will
also lose "lack of clean hands" as an affirmative defense, merely
because they did not bother to make it a separate affirmative defense.
That "and/or" is sloppy.
Can a real lawyer or paralegal comment on this please?
There are similar problems with the other two defenses that IBM is moving to
strike. In each case, the defense uses the phrase "inequitable conduct,
acts or omissions." IBM points to rule 9(b) to say that "inequitable
conduct" requires specificity, but striking the defense will also strike
"acts or omissions."
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, November 14 2003 @ 05:37 AM EST |
IBM is definitely looking like they're gonna eat SCO for breakfast. I do have
a couple questions for the legal gurus (just for curiosity, not legal advice.
:p)
1. How hard is it to slap SCO and their lawyers with sanctions & damages
for barratry, vexatious litigation, malicious prosecution, etc.?
2. Can IBM & the court "pierce the corporate veil" and make
Darl McBride and his cronies personally liable for all the trouble they caused?
I'd hate to see them float away scot free on their golden parachutes after SCO
goes bankrupt.
[ Reply to This | # ]
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| Authored by: penfold on Friday, November 14 2003 @ 08:44 PM EST |
A few years ago I found that www.theregister.co.uk posts BOFH articles, and have
been a fairly faithful reader ever since. I just found an article referring to
SCO and this very article and thought I would let everyone know.
http://www.theregister.co.uk/content/4/33986.html
---
I'm not kidding, that boy's head is like Sputnik; spherical but quite pointy at
parts! He'll be crying himself to sleep tonight, on his huge pillow.[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, November 15 2003 @ 03:48 AM EST |
hope this helps.
And really, argueing my butt off I didn't get any of their shares right when I
heard of this. Damnit, they went from 1 to 30 dollars something.
"Market economy", as people call it, has really gone mad it seems.
By the way, are there still people out there believing in a working capatilsm?
If so: go home, suckers..muahmuah...
regards, Marcel (synth-worldz.de)[ Reply to This | # ]
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