I take it Novell thinks, after the call, that there is a good chance that Microsoft is going to be granted its motion. Marbux told me that he thought they would be granted their motion also. So, Novell has sent a letter to Judge Motz, dated August 12, giving it one last try, reiterating that they believe he should not let Microsoft go forward, but if he does and the appeals court grants permission for Microsoft to appeal Motz's order, Novell will then ask for permission to immediately appeal the parts of Judge Motz's order that went against Novell. If the appeals court doesn't grant Microsoft a hearing, then Novell will not ask to immediately appeal its claims that were dismissed by the order. Got all that?

: )

I asked Marbux if he sees anything else worth mentioning, and he adds this:

I read it as Novell recognition that Judge Motz may grant Microsoft's motion for permission to apply to the Fourth Circuit for an appeal. But Novell doesn't want to weaken their position in opposing Microsoft's subsequent application to the Fourth Circuit by filing their own motion to allow an appeal.

So in effect they are giving Judge Motz a heads-up notice that if the Fourth Circuit ultimately decides to allow Microsoft to appeal, Novell will want a quick ruling at that time on a Novell motion for permission to apply to the Fourth Circuit for the right of appeal.

Novell is sitting pretty at this point. They have a ruling that they get to proceed with discovery on two claims. They know Microsoft will never let the case go to trial; Microsoft will settle high to foreclose that, if necessary, I would think. Microsoft will be nearly as opposed to any summary judgment rulings. Microsoft can not afford a binding adverse ruling in the MDL 1332 litigation or the ruling will metastasize into further cases being filed with collateral estoppel claims.

So Novell's strategy, I think, is to really fight to keep the merits of the complaint in district court. For Microsoft its motion is a win or settle issue. If they get past Judge Motz, then they have the same interests in winning a motion to allow an appeal before the Fourth Circuit. Then finally, they would have to actually win the appeal.

Novell's lawyers are saying they don't want both sides arguing for the right of appeal. But if Microsoft ultimately gets to file an appeal, Novell will want to appeal Judge Motz's rulings against Novell's other claims for relief.

Marbux already explained why, in his view, this is a must-win motion for Microsoft. You can find all the documents on this case on the permanent Novell-MS page, linked to on the left, but for convenience, here are the rest of the filings that are relevent to this letter:

• MS' Motion to Dismiss
• MS' Memorandum in Support of its Motion to Dismiss
• MS' Memorandum in Support of its Motion Pursuant to 28 U.S.C. Section 1292(b) For Certification of the Court's June 10 Ruling to the Extent it Denied Microsoft's Motion to Dismiss
• Novell's Memorandum in Opposition
• MS' Reply Memorandum

Novell mentions Federal Rule of Civil Procedure 54(b), which you can read here. And here is Novell's letter:

*****************************

[Dickstein Shapiro Morin & Oshinsky LLP letterhead]

August 12, 2005

Via FEDERAL EXPRESS

The Honorable J. Frederick Motz
United States District Judge
United States District Court for the District of Maryland
[address]

Re: In re Microsoft Corp. Antitrust Litigation, MDL 1332

Dear Judge Motz:

We write with respect to Novell, Inc. v. Microsoft Corp., Civil Action No. JFM-05-1087, to restate with more precision our position with respect to the issue of immediate appeals discussed during the monthly status conference call of Wednesday, August 3, 2005. We continue to believe that certification of Microsoft's interlocutory appeal is not justified, for all the reasons set forth in Novell's opposition memorandum dated July 12, 2005; however, assuming this Court grants Microsoft's motion for certification, Novell will seek an immediate appeal under Federal Rule of Civil Procedure 54(b), if but only if, the Fourth Circuit grants Microsoft's petition for permission to appeal.

We respectfully request that Your Honor not enter such an order regarding Novell's appeal at this time. If the Fourth Circuit does grant Microsoft's petition, then Novell will immediately and respectfully request this Court to make the necessary finding concerning Novell's appeal under Rule 54(b).

If you have any questions or concerns please let us know.

Very truly yours,

Jeffrey M. Johnson

cc: David B. Tulchin, Esq. (by First class and electronic mail)
Steven L. Holley, Esq. (by First class and electronic mail)

[Dickstein Shapiro address, phone, fax, email]