Swiss Arbitration Terms of Reference, as text, and Oracle Appears |
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Saturday, October 20 2007 @ 03:48 AM EDT
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Here's the Swiss Arbitral Tribunal's Terms of Reference, as text, thanks to MDT. It's what the parties and the arbitrators signed last October, in which are set out the rules of the road for the arbitration. Also, each of the parties sets forth a summary of its case. The arbitrators don't sign off on that. They just accept it as the outline of each side's presentation. Think of it as kind of the equivalent of a complaint and answer in a US lawsuit. This document is Exhibit D [PDF], attached to the Affidavit of Felix Imendoerffer, SUSE's legal counsel, in support of SUSE's Special Opposition to SCO's attempt to have the bankruptcy court stay the arbitration. His affidavit tells us that since this was signed, Phase I of the arbitration went forward and the arbitrators decided against SCO and dismissed its jurisdictional objections. So, when you read that part of the document, know that SCO lost on the attempt to avoid the arbitration in Switzerland, and that is why SUSE shows the document to the court and lets it know that SCO is jurisdictionally "owned", so to speak, by Switzerland and the arbitration there. Also here's Oracle's Request for Special Notice [PDF]. It would like a copy of everything sent to it too.
Oracle is asking for notices under Bankruptcy Code 2002(a). That reminds me. Some of you are shareholders. The rules on that are a litle squishy. In some cases, you get to get notices if the court agrees; in others, you only do if a committee of equity security holders is set up, as the Notes on Rule 2002 explains: Subdivision (d) relates exclusively to the notices given to equity security holders in chapter 11 cases. Under chapter 11, a plan may impair the interests of the debtor’s shareholders or a plan may be a relatively simple restructuring of unsecured debt. In some cases, it is necessary that equity interest holders receive various notices and in other cases there is no purpose to be served. This subdivision indicates that the court is not mandated to order notices but rather that the matter should be treated with some flexibility. The court may decide whether notice is to be given and how it is to be given. Under § 341(b) of the Code, a meeting of equity security holders is not required in each case, only when it is ordered by the court. Thus subdivision (d)(2) requires notice only when the court orders a meeting. At least one shareholder asked for notices and is receiving them, so either nobody noticed or nobody cared that there is no equity security holder committee set up. That's 2002(d), though, and Oracle is asking for notices under (a), as a creditor.
Every company and every law firm has its own style. You may remember Oracle's style from the hilarious SCO subpoena runaround in SCO v. IBM. Oracle is nothing if not thorough and precise, as you saw in their Motion to Quash the subpoena SCO sort of tried to serve on them, in which Oracle one by one pointed out all the procedural and technical defects in the SCO subpoena, like the subpoena allegedly issuing from the District of California, when there isn't any such district. My favorite sentence in the motion: "SCO should not be permitted to impose such slapdash discovery requests on nonparties at the very end of discovery, after it has had years to obtain the information in a more orderly fashion." And indeed, the court ruled that Oracle was not obliged to respond to the subpoena or be deposed. And you see that same Oracle carefulness here. Note this language, the first time we've seen it in this bankruptcy: Neither this Request for Special Notice nor any subsequent appearance, pleading, claim or suit is intended or shall be deemed to waive Oracle's and/or Oracle Credit Corporation's (i) right(s) to have final orders in non-core matters entered only after de novo review by a district judge; (ii) right(s) to trial by jury in any proceeding so triable herein or in any case, controversy or proceeding related hereto; (iii) right(s) to have the reference withdrawn by the United States District Court in any matter subject to mandatory or discretionary withdrawal; or (iv) other rights, claims, actions, defenses, setoffs or recoupments to which Oracle and Oracle Credit Corporation are, or may be, entitled under agreements, in law, or in equity, all of which rights, claims, actions, defenses, setoffs, and recoupments expressly are reserved. As you can see, Oracle is careful to preserve all the rights it thinks it might need, even ones it has already under case law, an example of careful lawyering, crossing every T and dotting the I's so there are no nasty surprises down the road. That is, by the way, one of the things I look for in a lawyer, the guy who tries to think of all possibilities, relies on no one's good will, and works to either avoid or ameliorate all conceivable issues. Finally, you have got to see this video, part of a series from an interview with Mark Webbink, who was Red Hat's first general counsel and then deputy general counsel for intellectual property, who just recently retired. He's now teaching at Duke and is on the board of the Software Freedom Law Center. I put it in News Picks, but I wanted to make sure it's part of our permanent collection. He talks about patents and the history of software patents, and he provides a clue as to why he thinks Microsoft suddenly fell in love with them: patents are a legal monopoly. In short, he views it as Microsoft's workaround after the US Justice Department began its antitrust proceedings against it.
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INTERNATIONAL
CHAMBER OF COMMERCE
INTERNATIONAL
COURT OF ARBITRATION
ICC Case No: 14320
SUSE
LWX GmbH
(Germany)
Claimant
- and -
THE
SCO GROUP, INC.
(USA)
Respondent
TERMS
OF REFERENCE
The
Arbitral Tribunal:
Roberto
Dallafior
Yves
Derains
Toby
Landau (Chairman)
TERMS
OF REFERENCE
Pursuant
to Article 18 of the Rules
of
the International Court of Arbitration of
the
International Chamber of Commerce,
effective
as of 1st January 1998: "The ICC Rules"
I -THE FULL NAMES AND DESCRIPTIONS OF THE PARTIES
[Article 18(l)(a)]
1. Claimant:The Claimant is SUSE LINUX GmbH ("SUSE"), a company
incorporated and
existing under the laws of Germany, and specializing in the Linux
operating system business. It is the legal successor of SuSE Linux
AG, and (since January 2004) a 100% indirectly owned subsidiary of
Novell, Inc. ("Novell"), a Delaware corporation
headquartered in Massachusetts, USA. SUSE's registered office and
contact details are as follows:
SUSE
LINUX GmbH, [address]
Attention:
Felix Imendorffer
[telephone, Fax]
2. Respondent:
The Respondent is The SCO Group, Inc. ("SCO"), a
company incorporated
and existing under the laws of Delaware. It is a provider of
software technology to businesses, and is the legal successor to
Caldera International, Inc. Its registered office and contact
details are as follows:
The
SCO Group, Inc., [address]
Attention:
Mr Andy Nagle / Mr Darl McBride
[telephone, Fax]
3. Terminology:
The Claimant and Respondent are each referred to in these Terms of
Reference
as a "Party", and collectively as "the Parties".
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II. THE
ADDRESSES OF THE PARTIES TO WHICH NOTIFICATIONS OR COMMUNICATIONS
ARISING IN THE COURSE OF THE ARBITRATION MAY BE MADE
[Article 18(l)(b)]
4. Claimant:
In
this arbitration, SUSE is represented, under Powers of Attorney
dated 6 April 2006 and 7 April 2006, by: Morrison
& Foerster LLP, [address]
Attention:
(1) Michael A. Jacobs, Grant L. Kim, Kenneth W. Brakebill
[telephone, fax, email]
(2) Homburger
Rechtsanwälte, [address]
Attention:
Georg Rauber, Felix Dasser, David Rosenthal
[telephone, fax, email]
5. Respondent: In
this arbitration, SCO is represented, under Powers of Attorney dated
17 October 2006, by: (1) Boies
Schiller & Flexner LLP, [address]
3
Attention:
Jonathan D. Schiller, William A. Isaacson [telephone, fax, email]
(2)
Boies
Schiller & Flexner LLP, [address] Attention:
Stuart H.Singer,
William T. Dzurilla [telephone, phone, fax]
(3) Lenz
& Staehelin, [address] Attention:
Dr. Paolo Michele Patocchi [telephone, fax, email]
6. Communications:
Notifications or communications arising in the course of this
arbitration are to be made to the above representatives.
7. Communications
between the Parties and the Arbitral Tribunal shall be by email to
all of the above, and confirmed in hard copy by fax or courier to
the following: (1)Grant
L. Kim of Morrison & Foerster LLP; (2)
David
Rosenthal of Homburger Rechtsanwälte;
(3) William
T. Dzurilla of Boies Schiller & Flexner LLP;
(4) Dr.
Paolo Michele Patocchi of Lenz & Staehelin.
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8. Communications
shall be deemed to be timely if sent by email by the due date at the
place of sending, with a confirming copy sent by fax or courier by
the following day.
9. Copies
of all communications between the Parties and the Arbitral Tribunal
shall be copied to the Secretariat of the ICC International Court of
Arbitration.
III. THE ARBITRATORS' FULL NAMES, DESCRIPTIONS AND ADDRESSES[Article
18(l)(e)]
10. The
Arbitral Tribunal comprises:
(1) Dr.
Roberto Dallafior, nominated
by SUSE and confirmed as arbitrator by Secretary
General of the ICC International Court of Arbitration pursuant to
Article 9(2) of the ICC Rules on 19 June 2006, and whose address
is: [address, telephone, fax, email]
(2) Yves
Derains, nominated by SCO and confirmed as arbitrator by the
Secretary General
of the ICC International Court of Arbitration pursuant to Article
9(2) of the ICC Rules on 19 June 2006, and whose address is:
[address, telephone]
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[fax, email]
(3) Toby
Landau, jointly
nominated by the two arbitrators and confirmed as Chairman by the
Secretary General of the ICC International Court of arbitration
pursuant to Article 9(2)
of the
ICC Rules on 28 August 2006, and whose address is: [address, telephone, fax, email]
IV. SUMMARY
OF THE PARTIES' RESPECTIVE CASES AND RELIEF SOUGHT [Article
18(l)(c)]
11. A
summary of the Parties' respective claims and defences is set out
below in order to satisfy
the requirements of Article 18(l)(c) of the ICC Rules. Sections IV(1)
and IV(2)
below
have been prepared and drafted by each party unilaterally, and do
not reflect or contain any expression of acquiescence on the part of
the other party or the members of the Arbitral Tribunal.
12. This
summary is subject to further submissions, and to Article 19 of the
ICC Rules. As such, it is not intended as an exhaustive or
definitive statement, and nor is it to be taken as foreclosing the
making of arguments or the introduction of evidence not expressly
referred to therein. 13.
Subject
to the ICC Rules and the rules of procedure applicable to the
arbitration, the Arbitral Tribunal shall have power, on application
by any party, to
allow amendments to
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the pleadings and written memorials on such
terms, if any, as the Arbitral Tribunal may deem appropriate.
(I)
Claimant's Summary
14. The
Claimant summarises its claims and the relief it seeks as follows:
i.
Jurisdiction
15. Article
9 of the Master Transaction Agreement ("MTA") and Article
12 of the Joint Development
Contract ("JDC") require "[a]ny differences or
disputes arising from" the MTA or JDC, or "from contracts
regarding its performance," to be resolved by ICC arbitration.
SUSE seeks to enforce its rights under the MTA and JDC and to obtain
relief from SCO's breach of these contracts. SUSE's claims arise
from the MTA and the JDC.
16. Therefore,
the Arbitral Tribunal has jurisdiction to adjudicate these claims.
17. In
contrast, there is no jurisdiction over SCO's counterclaims relating
to the Asset Purchase Agreement and Technical License Agreement,
because these contracts do not include arbitration clauses and were
not even signed by SUSE.
ii.
Claims
18. In
May 2002, in order to promote the widespread adoption of the Linux
computer operating system
as a standard for the information technology industry, SUSE, SCO
(then Caldera) and two other Linux vendors (Conectiva, Inc. and
Turbolinux, Inc.) agreed to develop a standard version of Linux
called "UnitedLinux." To this end, they entered into the
JDC and the MTA (together, "the UnitedLinux Contracts"),
which form the basis of these proceedings.
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19. A
fundamental premise of the UnitedLinux project was that SCO, SUSE
and the other UnitedLinux members would have the right to
commercialize the technology in the UnitedLinux Software
independently, free from claims that other members had any
proprietary rights to such technology that could threaten the common
project. This agreement was reflected in the following key
provisions of the UnitedLinux Contracts:
(1) All
intellectual property rights in the UnitedLinux Software shall be
assigned to the UnitedLinux LLC, except for "Pre-Existing
Technology" and "Enhancements."
(2) Each
member shall have a royalty-free license to commercialize the
technology in UnitedLinux,
granted by the other members directly (for "Pre-Existing
Technology" and “Enhancements”) or through the
UnitedLinux LLC (for all other technology).
(3) All
UnitedLinux technology already subject to an "open-source
license" shall remain subject to such license as well. As SCO
knew, the Linux "kernel" was subject to the General
Public License ("GPL"), which required the Linux kernel
and any published modifications thereto to be made freely available
to the public. Thus, SCO agreed that any portions of UnitedLinux
based on the Linux kernel would be released subject to the GPL as
freely available, open source code.
20. Thus,
all of the UnitedLinux Software was available to all UnitedLinux
members by license from the UnitedLinux LLC, direct license from the
members, and/or under the terms of the open source licenses that the
members agreed to apply.
21. Initially,
SCO (then Caldera) strongly supported UnitedLinux, proclaiming that: "Caldera
sees the formation of UnitedLinux as a tremendous benefit to the
industry, to our customers, to our 16,000-member reseller channel,
and to our IHV and ISV partners. Linux and Open Source have already
changed the way software is developed in the new online world.
UnitedLinux now offers a viable business model and creates a
unified
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environment that will attract many more global business
solutions to Linux enabling far greater adoption and use. Caldera
plans to make Linux not just an alternative OS, but the dominant
choice for businesses worldwide who are wanting to take advantage
of the benefits of online services."
22. In
November 2002, SCO proudly announced the release of SCO Linux 4.0,
"powered by UnitedLinux." However, SCO later changed its
position, asserting that it owned copyrights in UNIX that were
infringed by all Linux
products, including SUSE Linux, and that its UnitedLinux partners
were not licensed to use such alleged copyrights despite the
UnitedLinux contracts.
23. In
line with its new position, SCO began filing and threatening
lawsuits against Linux users, asserting that they were infringing on
SCO's copyrights and demanding that they partake in a licensing
program that SCO had set up. SCO also asserted that SUSE's licenses
under the JDC and MTA Agreements provided no protection to its
customers, suggesting that they were thus equally susceptible to
lawsuits. These statements and lawsuits directly threatened SUSE and
its Linux-based business. Moreover, in proceedings pending in Utah
against Novell -- SUSE's parent company and licensee to SUSE's
intellectual property rights -- SCO alleged that Novell's distribution
of SUSE Linux pursuant to its license from SUSE infringes on SCO's
alleged copyrights.
24. SCO's
actions constitute a clear breach of the plain language and purpose
of the UnitedLinux Contracts. In particular, SCO's assertion of
copyright infringement claims against SUSE Linux is contrary to the
clear terms of the UnitedLinux Contracts, which conferred upon the
UnitedLinux members the right to use "all" intellectual
property in the UnitedLinux "Software." Moreover, SCO's
public attacks on the Linux operating system and withdrawal of
support from the UnitedLinux project have impeded the purpose of the
common UnitedLinux project and caused damage to SUSE and its
business.
25. Accordingly,
SUSE has filed this arbitration to obtain (1) a declaratory judgment
by the Arbitral Tribunal; (2) an order preventing SCO from further
directly or indirectly interfering
in SUSE's business; and (3) compensation for the damages and costs
incurred.
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26. SCO's
summary of its position in the Terms of Reference purports to assert
what are effectively
counterclaims against SUSE for alleged breach of two agreements
signed in 1995 by the Santa Cruz Operation and Novell. Yet SUSE did
not sign either agreement, which do not include arbitration clauses
in any event. Further, SCO did not include these counterclaims in
its Reply to the Request for Arbitration, as required by Article 5
of the ICC Rules. SCO's counterclaims are defective and should be
dismissed.
iii.
Relief Sought
27. Claimant
SuSE requests that the Arbitral Tribunal award the following relief:
(1) Declare
that SCO is precluded under the MTA and the JDC from asserting any
copyright infringement claims related to SUSE Linux;
(2) Declare,
in particular, that the MTA and JDC divest SCO of ownership of any
alleged intellectual property rights in any part of software
included in the UnitedLinux Software (other than Pre-Existing
Technology and Enhancements);
(3) Order
SCO to refrain from alleging publicly or against third parties that
the use and distribution of SUSE Linux infringes upon SCO's
copyrights, as precluded by the MTA and JDC;
(4) Order
SCO to pay damages in an amount to be determined for breach of the
MTA and
JDC by improperly asserting claims against SUSE and its licensees,
and by attacking and withdrawing support for the UnitedLinux
project;
(5) Dismiss
SCO's counterclaims relating to the Asset Purchase Agreement and
Technical License Agreement;
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(6) Order
SCO to bear all costs of the arbitration proceeding, including the
costs and expenses of the ICC and of the arbitrators, as well as
attorneys' fees, cost of lost executive time and expert's costs, if
any; and
(7) Award
any further relief that the Arbitral Tribunal deems necessary to
effectuate the relief requested above.
(2)
Respondent's Summary
28. The
Respondent incorporates by reference its "Reply to SuSE Linux
GmbH Request for Arbitration" of 27 June 2006 and summarises
its claims and the relief it seeks as follows:
i.
Jurisdiction
29. SCO
contends that SUSE's claims and requests for relief are
nonarbitrable. The disputes herein are over defenses to and relief
from claims made by SCO against nonparties to this arbitration in US
litigation, which in any event are not "disputes arising from"
the JDC or MTA or "from contracts regarding its performance." 30. The
Tribunal has jurisdiction to hear SCO's counterclaim under the
doctrines of implied consent and set-off.
ii.
Defences / Claims
31. The
UNIX operating system, developed by AT&T's Bell Laboratories in
the mid-1980s, is one of the principal operating systems for
businesses throughout the world. Ownership of the intellectual
property in the UNIX Operating system, including specifically UNIX
System V, is now held by SCO. SCO holds not only certain
intellectual property rights to UNIX source-code, but it also
markets UNIX products, such as Openserver and
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UNIXWARE.
In the late 1990s, SCO UNIX products had a market share of
approximately
80 percent of the so-called UNIX-on-Intel market, that is, computers
using Intel chips and a UNIX operating system.
32. Linux
is a "free" or "open source" operating system
that has become a major competitor of UNIX. Prior to 2003, when SCO
discovered that some of its proprietary UNIX technology had been
misappropriated into Linux, SCO (formerly known as Caldera
International, Inc.) had distributed Linux and participated in Linux
development efforts, as reflected by its participation in
UnitedLinux. SCO, however, never agreed to allow UnitedLinux to make
use of SCO's UNIX technology, on which SCO depended for 95% of its
revenue.
33. In
November 2003, Novell announced its acquisition of SUSE. Novell at
all times thereafter has had 100% control of SUSE. SCO is involved
in litigation against Novell and others over the misappropriation of
UNIX technology into Linux.
34. Each
of the members of the UnitedLinux LLC (the "LLC") agreed
in the JDC to (1) contribute
certain, clearly specified pre-existing technology
to the project, (2) develop
certain new technology
for purposes of the project, and (3) integrate the foregoing
technologies with existing, open-sourced Linux technology.
35. The
JDC provided that certain specified Pre-Existing Technology (defined
to include only the pre-existing technology listed in Exhibit C) was
to be licensed by each Member to the others and to the LLC. (JDC
art. 8.1.) The contributed, pre-existing technology listed in
Exhibit C does not include the technology over which SCO has
asserted claims against Novell and others. SUSE is improperly
asserting claims and seeking relief with respect to intellectual
property never contributed to the LLC.
36. In
addition, any new, jointly developed technology (as opposed to
pre-existing technology such as UNIX) was to be assigned to the LLC.
(JDC art. 8.2.) However, no Member made any actual assignments of
jointly developed technology to the LLC, and the LLC never made any
assignments to the Members.
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37. The
intellectual property at issue was not jointly developed. Thus, SUSE
is improperly asserting claims and seeking relief with respect to
intellectual property that was not jointly developed by the LLC.
38. During
the negotiation of the UnitedLinux contracts, SCO discussed with the
other United Linux members the possibility that at some point in the
future SCO might be in a position to contribute some unspecified
UNIX technology to the United Linux project. However, it was made
clear that, if the parties were to agree on any contribution of UNIX
technology to the project, it would need to be the subject of a
subsequent agreement. No such agreement was ever reached.
39. In
addition, when the UnitedLinux agreements were signed in May 2002,
SCO was unaware that its proprietary UNIX: technology had been
misappropriated into Linux. The agreements should not be interpreted
as working an unknowing, implied waiver or forfeiture of rights. 40. Based
on the above, SUSE Claims must be denied because the LLC never
purported to license SCO's UNIX technology to the Members, as SUSE
contends it did.
41. After
the date of its acquisition by Novell, SUSE has continued to
distribute Linux in competition with SCO. This violates the
Technology Licensing Agreement ("TLA") and the Asset
Purchase Agreement ("APA") in effect between Novell and
SCO.
42. In
connection with the acquisition of UNIX technology from Novell,
Novell and SCO's predecessor in interest, Santa Cruz, entered into
the TLA and APA. The TLA licensed back to Novell the UNIX technology
included in the transferred assets for certain purposes, but both
the TLA and the APA contained express non-compete provisions,
whereby Novell covenanted not to distribute the licensed back
technology in (a) any operating system in competition with SCO's
core server products or (b) in any product in which the technology
constitutes a primary portion of the value of the product.
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43. SUSE
has continued to distribute Linux in violation of these provisions
of the TLA and APA. SUSE has induced Novell to breach these
provisions, interfered with SCO's rights under these contracts,
aided and abetted, conspired, and acted in concert with Novell in
breaching the non-competition covenants and related torts. SUSE has
also taken actions contrary to the interests of its joint venture
partner SCO, in violation of its duty of good faith.
44. Further,
SUSE has no right to enforce the UnitedLinux Agreements because it
abandoned and repudiated them, or abandoned the UnitedLinux project,
or both.
45. In
addition to misinterpreting the relevant contracts, SUSE's requests
for relief are grossly overbroad. SUSE, based on a dispute between
Novell and SCO, improperly
seeks a declaratory judgment and other relief from the Arbitral
Tribunal that would in effect approve the use and distribution of an
operating system that includes misappropriated technologies and is
the subject of multiple pending federal lawsuits on that precise
subject.
iii.
Relief Sought
46. SCO
requests that the Arbitral Tribunal find that the claims asserted by
SUSE are non-arbitrable as they constitute defenses to pending US
litigation claims and are not "claims" arising from the
MTA or JDC.
47. In
the alternative, if SUSE's claims are deemed arbitrable, SCO
requests that the Arbitral Tribunal:
(1) deny
all relief requested by SUSE;
(2) declare
that SUSE's activities violate the non-competition provisions of
the TLA and APA;
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(3) award
damages to SCO, and
(4) grant
SCO all costs of this proceeding and any further relief that the Tribunal deems appropriate.
(3)
Amount in Dispute
48. The
amount in dispute between the Parties is, as yet,
unquantified, but currently estimated by SUSE (pursuant to Article
18(c) of the ICC Rules) as between US$50 million and US$ 100
million. SCO's counterclaim damages are estimated to be at least US$
10 million.
V
- LIST OF PRINCIPAL ISSUES TO BE DETERMINED [Article 18(1)(d)]
49. The
issues to be determined by the Arbitral Tribunal shall be those
resulting from the Parties' submissions, including forthcoming
submissions, and which are relevant to the adjudication of the
Parties' respective claims and defences.
50. Pending
full written submissions from each party, and taking into account
Article 18(1)(d) of the ICC Rules, it is inappropriate for a list of
principal issues to be drawn up at this stage of the proceedings.
VI
- THE PLACE OF THE ARBITRATION [Article 18(l)(f)]
51. As
provided for in Clause 9.4 of the MTA and Clause 12.4 of the JDC,
the legal place or seat of this
arbitration is Zürich, Switzerland.
52. The
Parties agree that all awards (whether final, interim or partial)
and all procedural orders, directions and instructions, wherever
signed, shall be deemed
as having been made in Zürich, Switzerland.
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53. It
is agreed that, after consultation with the Parties, and pursuant to
Article 14(2) of the ICC Rules, the Arbitral Tribunal may conduct
any meeting, hearing or examination in such other location as it may
consider appropriate, unless otherwise agreed by the Parties.
VII
- PARTICULARS OF THE APPLICABLE PROCEDURAL RULES AND OTHER
MATTERS
[Article 18(1)(g)]
54. Arbitration
Agreements: These
proceedings have been commenced pursuant to the following
contractual provisions, which are in near identical terms:
(1)
Clause 9 of the Master Transaction Agreement (MTA), dated 29 May
2002, by and between SUSE (then known as SuSE Linux AG); SCO (then
known as Caldera International, Inc.); Conectiva Inc.; and
Turbolinux, Inc. This provides as follows:
"9. Governing
Law; Dispute Resolution
9.1 This
MTA shall be governed by and construed in accordance with the laws
of Switzerland. The United Nations Convention on the International
Sale of Goods shall not apply to this MTA.
9.2 Any
differences or disputes arising from this MTA or from contracts
regarding its performance shall be settled by an amicable effort on
the part of the Parties. An
attempt to arrive at a
settlement shall be deemed to have failed as soon as one of the
Parties so notifies the other Party in writing.
9.3 If
any attempt of settlement has failed, the disputes shall be finally
and exclusively settled under the Rules of Arbitration of the
International Chamber of Commerce then in force (Rules) by three
arbitrators appointed in accordance with said Rules.
9.4 The
place of arbitration shall be Zürich. The procedural law of
this place shall apply when the Rules are silent.
9.5 The
arbitral award shall be substantiated in writing. The arbitral
tribunal shall decide on the matter of costs of the arbitration.
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9.6 The
arbitration language shall be English.
(2)
Clause 12 of the UnitedLinux Joint Development Contract
(JDC), dated 29 May 2002,
by and between SUSE (then known as SuSE Linux AG); SCO (then known as
Caldera International, Inc.); Conectiva Inc.; Turbolinux, Inc.; and
UnitedLinux, LLC. This provides as follows:
"ARTICLE 12
GOVERNING
LAW; DISPUTE RESOLUTION
12.1 Governing
Law. This JDC shall be governed by and construed in
accordance with the laws of Switzerland. The United Nations
Convention on the International Sale of Goods shall not apply to
this JDC.
12.2 Any
differences or disputes arising from this JDC or from contracts
regarding its performance shall be settled by an amicable effort on
the part of the Parties. An attempt to arrive at a settlement shall
be deemed to have failed as soon as one of the Parties so notifies
the other Party in writing.
12.3 If
any attempt of settlement has failed, the disputes shall be finally
and exclusively settled under the Rules of Arbitration of the
International Chamber of Commerce then in force (Rules) by three
arbitrators appointed in accordance with said Rules.
12.4 The
place of arbitration shall be Zürich. The procedural law of
this place shall apply when the Rules are silent.
12.5 The
arbitral award shall be substantiated in writing. The arbitral
tribunal shall decide on the matter of costs of the arbitration.
12.6 The
arbitration language shall be English."
55. Notwithstanding
the existence of two arbitration clauses, the Parties agree that in
these arbitration proceedings there shall be a single arbitral
tribunal comprising three members.
56. Standing of the Arbitral
Tribunal: For
the purpose of these arbitration proceedings, and without prejudice
to any jurisdictional objections based on the scope of the relevant
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arbitration agreements or the arbitrability or nature of SUSE's
claims, and any arguments on stay, waiver or abandonment, the
Parties agree that the arbitrators have been properly and validly
appointed, and each Party hereby confirms that it is not aware of
any ground to challenge the appointment of the Arbitral Tribunal or
any of its members.
57. Awards,
Orders, etc: Subject
to the ICC Rules and these Terms of Reference, the Arbitral Tribunal
is authorised to issue such partial awards, interim awards,
procedural orders and other procedural directions or instructions as
it may deem appropriate.
58. Powers of the Chairman: Procedural
orders or other directions or instructions may be signed by the
Chairman alone, on behalf of the Arbitral Tribunal, after
consultation with the other members of the Arbitral Tribunal. In
case of urgency, the Chairman acting alone may extend or modify any
procedural time limit.
59. Language
of the Proceedings: As
provided in Clause 9.6 of the MTA and Clause 12.6 of the JDC, the
language of the proceedings (Article 16 of the ICC Rules) is
English. Documents submitted in any other language shall be
accompanied by a translation into English. Any witness may give oral
evidence in the witness's mother tongue, provided that arrangements
for interpretation to the satisfaction of the Arbitral Tribunal are
made by the party calling that witness.
60. Applicable
Substantive Law: The
relevant contracts contain the following express provisions as to
applicable law:
(1) Clause
9.1 of the MTA:
"9.1
This MTA shall be governed by and construed in accordance with
the laws of Switzerland. The United Nations Convention on the
International Sale of Goods shall not apply to this MTA."
(2) Clause
12.1 of the JDC:
18
"12.1
Governing Law. This
JDC shall be governed by and construed in accordance with the laws
of Switzerland. The United Nations Convention on the International
Sale of Goods shall not apply to this JDC."
61. Applicable
Procedural Rules: Clause
9.4 of the MTA and Clause 12.4 of the JDC both contain the following
provision: "The
place of arbitration shall be Zürich. The procedural law of
this place shall apply when the Rules are silent."
62. Article
15(1) of the ICC Rules provides as follows: "The
proceedings before the Arbitral Tribunal shall be governed by these
Rules and, where these Rules are silent, by any rules which the
parties or, failing them, the Arbitral Tribunal may settle on,
whether or not reference is thereby made to the rules of procedure
of a national law to be applied to the arbitration."
63. Article
35 of the ICC Rules provides as follows: "In
all matters not expressly provided for in these Rules, the Court
and the Arbitral Tribunal shall act in the spirit of these Rules
and shall make every effort to make sure that the Award is
enforceable at law."
64. Given
that Clause 9 of the MTA and Clause 12 of the JDC both incorporate
the ICC Rules, and that Articles 15(1) and 35 of the ICC Rules
themselves cater for any "silences" in the Rules, it is
agreed that, subject to any mandatory provisions of Swiss law
relating to an international arbitration with a seat in Zürich, the
procedure to be followed shall be governed by the ICC Rules and
where these rules are silent, as may be determined by the Arbitral
Tribunal in its discretion.
65.
Article
17(3): The
Arbitral Tribunal shall not have authority to act as amiable
compositeur or
to decide ex
aequo et bono in
accordance with Article 17(3) of the ICC
19
Rules.
66. Appointment
of Experts: The
Arbitral Tribunal reserves the right, after consultation with the
Parties, to appoint such expert(s) as it may deem advisable to
assist the Arbitral Tribunal, in addition to any experts which the
Parties may choose to present.
67. Changes
in Details: The Parties, counsel and Arbitrators shall notify all Parties, all signatories of these Terms of Reference and the ICC Secretariat of any change of name, description, address, telephone or fax number. In the absence of any such notification, communications sent in accordance with these Terms of Reference shall be valid.
68. Extensions
of Time: The
Parties hereby agree and give consent, in so far as necessary, that
the Arbitral Tribunal may apply to the ICC International Court of
Arbitration for an extension of the time within which their award
must be rendered. Any extension of time granted by the ICC Court
shall be deemed to have the consent of the Parties to the extent the
consent of the Parties may be required under any applicable law.
VIII
- VAT ON ARBITRATORS' FEES
69.
In
light of Article 2(9) of Appendix III of
the ICC Rules, it is agreed that if and to the extent that any of
the arbitrators is required to collect VAT from one or all of the
Parties, such Party or Parties, as determined by the Arbitral
Tribunal, shall pay the amount of such VAT to the arbitrator in
addition to any fees due to him. Each party further undertakes, if
and when required by the Arbitral Tribunal, to pay to the ICC its
share of an advance on VAT as determined by the Arbitral Tribunal.
20
These
Terms of Reference have been agreed and duly signed and executed as
follows:
(1)
On behalf of the Claimant _____[signature]_____
Printed
Name: Michael A Jacobs
Signed
on 30 October 2006
(2)
On behalf of the Respondent: ____[signature]
Printed
Name: William A. Isaacson
Signed
on 31 October 2006
(3)
Roberto Dallafior, Co-Arbitrator ____[signature]___
Signed
on 15 October November 2006
(4)
Yves Derains, Co-Arbitrator ______[signature]_______
Signed
on 24 October 2006
(5)
Toby Landau, Chairman:____[signature]____
Signed
on 21 October 2006
[End of Document]
21
|
|
Authored by: Aladdin Sane on Saturday, October 20 2007 @ 03:58 AM EDT |
For accuracy's sake, please list corrections
here.
Thanks.
--- One test is worth 1000 expert opinions. [ Reply to This | # ]
|
- fir->for (n/t) - Authored by: tiger99 on Saturday, October 20 2007 @ 05:31 AM EDT
- Page 12 of the document - UNJX - Authored by: tiger99 on Saturday, October 20 2007 @ 05:34 AM EDT
- And page 13 - UNLX - Authored by: tiger99 on Saturday, October 20 2007 @ 05:36 AM EDT
- Para 51 double comma - Authored by: tiger99 on Saturday, October 20 2007 @ 05:39 AM EDT
- Para 21 1HV->IHV - Authored by: tiger99 on Saturday, October 20 2007 @ 05:42 AM EDT
- Para 23 Novel1->Novell - Authored by: tiger99 on Saturday, October 20 2007 @ 05:44 AM EDT
- Phase I->Phase 1 - Authored by: tiger99 on Saturday, October 20 2007 @ 05:47 AM EDT
- "crossing every T and dotting the I's" - Authored by: tiger99 on Saturday, October 20 2007 @ 05:50 AM EDT
- Incomplete List of Corrections - Authored by: DaveJakeman on Saturday, October 20 2007 @ 08:14 AM EDT
- Rechtsanwälte - Authored by: Anonymous on Saturday, October 20 2007 @ 08:17 AM EDT
- Corrections thread - Authored by: Anonymous on Saturday, October 20 2007 @ 08:26 AM EDT
- Rechtsanwtilte > Rechtsanwälte - Authored by: Anonymous on Saturday, October 20 2007 @ 10:12 AM EDT
- Mo' corrections - Authored by: Anonymous on Saturday, October 20 2007 @ 11:42 AM EDT
- litle --> little - Authored by: ankylosaurus on Saturday, October 20 2007 @ 11:41 PM EDT
|
Authored by: Aladdin Sane on Saturday, October 20 2007 @ 04:01 AM EDT |
Discuss Groklaw's Right Hand Column here.
Please let us know which News
Pick you are commenting on.
--- One test is worth 1000 expert
opinions. [ Reply to This | # ]
|
- (Mis)understandings of the words “intellectual property” - Authored by: tiger99 on Saturday, October 20 2007 @ 06:04 AM EDT
- Open source value for PayPal - Authored by: kattemann on Saturday, October 20 2007 @ 06:28 AM EDT
- More states join call for extra Microsoft policing - Authored by: Anonymous on Saturday, October 20 2007 @ 01:07 PM EDT
- Why? - Authored by: cmc on Saturday, October 20 2007 @ 06:01 PM EDT
- Why? - Authored by: nsomos on Saturday, October 20 2007 @ 06:37 PM EDT
- Why? - Authored by: DarkPhoenix on Saturday, October 20 2007 @ 11:27 PM EDT
- Why? - Authored by: PJ on Saturday, October 20 2007 @ 06:55 PM EDT
- Stuffing - Authored by: Anonymous on Sunday, October 21 2007 @ 11:47 AM EDT
- Stuffing - Authored by: Anonymous on Sunday, October 21 2007 @ 11:52 AM EDT
- Stuffing - Authored by: Jude on Sunday, October 21 2007 @ 12:02 PM EDT
- IBM Seeking 'Patent-Protection-Racket' Patent - Authored by: Anonymous on Saturday, October 20 2007 @ 02:44 PM EDT
- lets see how they use it ... - Authored by: nsomos on Saturday, October 20 2007 @ 03:12 PM EDT
- lets see how they use it ... - Authored by: Tyro on Saturday, October 20 2007 @ 05:08 PM EDT
- Sad - Authored by: cmc on Saturday, October 20 2007 @ 05:49 PM EDT
- sad ... - Authored by: nsomos on Saturday, October 20 2007 @ 06:24 PM EDT
- sad ... - Authored by: Anonymous on Saturday, October 20 2007 @ 06:30 PM EDT
- sad ... - Authored by: cmc on Saturday, October 20 2007 @ 08:17 PM EDT
- Sad - Authored by: Anonymous on Saturday, October 20 2007 @ 10:10 PM EDT
- lets see how they use it ... - Authored by: PJ on Saturday, October 20 2007 @ 06:52 PM EDT
- FOSS should do likewise. - Authored by: pgmer6809 on Saturday, October 20 2007 @ 06:28 PM EDT
- IBM Seeking 'Patent-Protection-Racket' Patent - Authored by: Anonymous on Saturday, October 20 2007 @ 06:42 PM EDT
- IBM Seeking 'Patent-Protection-Racket' Patent - Authored by: DarkPhoenix on Saturday, October 20 2007 @ 11:29 PM EDT
- Misunderstandings and ignorance - Authored by: cmc on Sunday, October 21 2007 @ 01:35 AM EDT
- Is this a very cunning plan? - Authored by: Ian Al on Sunday, October 21 2007 @ 03:26 AM EDT
- 5 Free Ads (News picks) for Canonical - Authored by: Anonymous on Monday, October 22 2007 @ 09:55 PM EDT
|
Authored by: Aladdin Sane on Saturday, October 20 2007 @ 04:03 AM EDT |
Comments that are not topical to the article can be posted here.
Change the
Post Mode, if you write in HTML.
Thanks, all!
--- One test is
worth 1000 expert opinions. [ Reply to This | # ]
|
- IBM to patent patent trolling ! - Authored by: Anonymous on Saturday, October 20 2007 @ 10:18 AM EDT
- Information about SCO lawsuit in Germany - now in English - Authored by: Anonymous on Saturday, October 20 2007 @ 11:22 AM EDT
- [OT] Off Topic comments: Patent case - Authored by: TerryL on Saturday, October 20 2007 @ 01:31 PM EDT
- [OT] Off Topic comments - Authored by: LionKuntz on Saturday, October 20 2007 @ 04:41 PM EDT
- Furious Phoeniciens Force Faux Out - Authored by: Anonymous on Saturday, October 20 2007 @ 06:01 PM EDT
- Ext2IFS -- ext2/ext3 driver for Windows - Authored by: cmc on Saturday, October 20 2007 @ 11:35 PM EDT
- Why I quit: kernel developer Con Kolivas - Authored by: Anonymous on Saturday, October 20 2007 @ 11:44 PM EDT
- [OT] IMSLP (International Music Score Library Project) hit with cease and desist order - Authored by: davidf on Sunday, October 21 2007 @ 02:35 AM EDT
- Canada to follow U.S. copyright model - Authored by: Anonymous on Sunday, October 21 2007 @ 10:01 AM EDT
- Congressional international piracy hearing targets China, Russia, and... Canada? - Authored by: Anonymous on Sunday, October 21 2007 @ 10:32 AM EDT
|
Authored by: Anonymous on Saturday, October 20 2007 @ 04:22 AM EDT |
PJ wrote:
> That is, by the way, one of the things I look for in a
> lawyer, the guy who tries to think of all possibilities ...
or the _woman_ who tries to think of all possibilities ;-)
PJ for attorney general!
[ Reply to This | # ]
|
|
Authored by: Erwan on Saturday, October 20 2007 @ 04:24 AM EDT |
Do you consider joining a committee of equity security
holders to be able to
report to Groklaw ?
And congratulation on yet another hat trick
;-)--- Erwan [ Reply to This | # ]
|
|
Authored by: Anonymous on Saturday, October 20 2007 @ 05:18 AM EDT |
Yeah, bring in Larry! He could give Darl's ego a match! [ Reply to This | # ]
|
|
Authored by: DaveJakeman on Saturday, October 20 2007 @ 08:29 AM EDT |
The Chairman looks aghast and says, "Get that thing out of here!"
Well, let's hope so. It smells bad and it's far too big for their courtroom.
---
Monopolistic Ignominious Corporation Requiring Office $tandard Only For
Themselves[ Reply to This | # ]
|
|
Authored by: Anonymous on Saturday, October 20 2007 @ 08:32 AM EDT |
39. In addition, when the UnitedLinux agreements were
signed in May 2002, SCO was unaware that its proprietary
UNDI: technology had been misappropriated into Linux. The
agreements should not be interpreted as working an
unknowing, implied waiver or forfeiture of rights.
Wasn't this item destroyed by Kimbol?[ Reply to This | # ]
|
- Possibly,... - Authored by: DaveJakeman on Saturday, October 20 2007 @ 08:57 AM EDT
- Possibly,... - Authored by: PJ on Saturday, October 20 2007 @ 11:01 AM EDT
- Possibly,... - Authored by: kjs on Saturday, October 20 2007 @ 03:38 PM EDT
- No Defence against Red Queen - Authored by: Anonymous on Saturday, October 20 2007 @ 04:53 PM EDT
- Swiss Arbitration Terms of Reference, as text, and Oracle Appears - Authored by: Ian Al on Sunday, October 21 2007 @ 04:22 AM EDT
|
Authored by: Anonymous on Saturday, October 20 2007 @ 06:43 PM EDT |
Here is a text version of Schedule F, SCOGBK-130, part 2,
"creditors holding unsecured nonpriority claims", sorted
by dollar value. It differs somewhat from the list of top 20 creditors filed on
Sept 14, 2007 as SCO_CH11-1-B. In particular, BS&F is now owed $515,690, up
from $287,256.
515,690.86 Boies, Schiller & Flexner
500,650.73 AMICI LLC
273,978.00 Fringe benefits
158,973.75 Microsoft Licensing, Inc.
156,466.30 SCO Software (UK), LTD
125,371.24 SCO Group (Germany) GMBH
121,734.40 SCO Group (France) SARL
61,375.91 Novell, Inc. - Royalties
37,881.33 Veritas Software
34,961.52 Hatch James & Dodge
31,389.14 Mirage
30,505.00 Keven McBride
25,788.55 Fujitsu Services
25,302.11 Unisys Corporation
25,302.11 Intel Corporation
25,302.11 HP-Nonstop Royalty Acccounting
24,136.47 SCO Group Canada
21,781.25 KSJ Consulting
20,000.00 E-Trade Financial Corp Services
17,952.50 Boetticher, Hasse, Lohman
15,000.00 Edison Design Group, Inc.
14,902.29 American Express
13,842.00 Hyperion Consulting, Inc.
12,206.79 Strhold Spa
11,664.50 Sun Microsystems, Inc.
11,400.00 Profile Consulting, Inc.
11,400.00 LynnSoft
11,364.82 Shenyang Neusoft Co LTD
10,417.50 4 Front Technologies
10,352.35 Silverman Heller Associates
9,959.00 Tanner & Co.
9,198.72 G. Gervaise Davis, Esq.
8,693.32 Madson & Austin
7,026.79 RandD Strategic Solutions, LLC
6,529.00 Yi Jia
6,529.00 Eric Lee
6,377.89 Jersey Central Power & Light
6,221.00 Sage Forensic Accounting
5,709.54 Sales Synergy Canada
5,696.35 Global Crossing Conferencing
5,496.10 Jeff Hunsaker - Commissions
5,399.67 AMLAW Discovery
5,209.58 Bynari, Inc.
5,000.00 T.C.X. Data
5,000.00 Kent Derricott
5,000.00 IDC West
4,948.83 Landman Corsi Ballain & Ford
4,800.00 Plum Hall
4,706.25 Sykes Global Services Ltd.
4,512.68 Graphik
4,496.10 Richy Anderson - Commissions
4,056.67 Verizon
3,771.33 John Maloy - Commissions
3,000.00 Tech Marketing Ink
2,765.37 Cornerstar
2,665.34 Kelly Services
2,645.00 Nasdaq Stock Market
2,419.46 Insight
2,110.00 Bowne of Los Angeles, Inc.
2,000.00 Main 10
1,946.39 Rochkind, Marc J.
1,850.87 UCN
1,744.40 AT&T
1,622.39 Dorsey & Whitney LLP
1,600.00 Parr Waddoups
1,462.07 UPS
1,445.50 Fillmore Spencer, LLC
1,283.80 PR Newswire
1,223.79 Computershare Trust Company
1,134.09 CCI Network Services
1,090.62 Felix Eisenberg - Commissions
850.70 PREMIER SYSTEMS (PVT) LTD
750.88 Sprint
629.10 Express One
599.40 Darl McBride
500.55 Stealth Insight
500.00 Zenez
438.00 Lexis Nexis
361.19 Qwest
337.50 Mypaperless Office
288.00 World EX
280.00 J. Harrison Colter
250.00 Timpanogos High School
230.04 XO Communications LLC
213.00 Canon Business Solutions
210.00 Computer Associates Intl
198.00 The Canopy Properties
185.50 Kirton & McConkie
185.45 OfficeMax
185.00 Novell Inc.
145.00 Cybersource
130.00 Goodwin Procter LLP
125.12 INFO-QUEST SA
125.00 The Depository Trust Co.
122.15 Filterfresh
113.60 GES
100.00 CUSIP Service Bureau
98.05 Orem City
71.17 T-Mobile
71.16 DHL Express
69.95 Cintas Document Management
61.47 McHugh Milk Co
39.99 Pitney Bowes Purchase Power
28.27 Rocky Mountain Power
21.98 Maxine McCarthy
18.50 The Print Network
1.20 Arch Wireless
Total: $2,533,975.36
Excluding the $427,708.41 owed to SCO subsidiaries in France, Germany, Canada,
and UK, the total is $2,106,266.95.[ Reply to This | # ]
|
- SCOGBK-130part2, Schedule F as text - Authored by: Anonymous on Saturday, October 20 2007 @ 09:20 PM EDT
- SCOGBK-130part2, Schedule F as text - Authored by: Anonymous on Sunday, October 21 2007 @ 03:49 AM EDT
- 1,946.39 Rochkind, Marc J. - Authored by: tiger99 on Sunday, October 21 2007 @ 06:52 AM EDT
- SCOGBK-130part2, Schedule F as text - Authored by: DaveJakeman on Sunday, October 21 2007 @ 10:19 AM EDT
- You crack me up! - Authored by: Anonymous on Sunday, October 21 2007 @ 10:28 AM EDT
|
Authored by: Ian Al on Sunday, October 21 2007 @ 04:51 AM EDT |
I think the arbitration is the only chance for us to see what Caldera licenced
to Suse, but perhaps we won't even see it as part of the arbitration. I would
have thought we would have got it by now if we were going to get it at all. I
don't think this will have any impact on the arbitration because of the schedule
of reasons given by Suse. However, only the pre-existing technology
listed in Exhibit C) was to be licensed by each Member to the others and to the
LLC. (JDC art. 8.1.) The contributed, pre-existing technology listed in Exhibit
C does not include the technology over which SCO has asserted claims against
Novell and others does hack further holes in the husk of the US,
SCOG v IBM and SCOG v Novell cases. That is, if you can call the remaining
fragments, a husk. In particular, it might address the non-competition clause
that SCOG have accused Novell of breaching. Do you remember SCOG in the IBM case
saying that they definitely, never, ever contributed anything at all in any way
to Linux?
I'm sure the UnitedLinux stuff is before the court in both the IBM
and Novell cases, but only the judge can see that SCOG are being parsimonious
with the veracity in court. I think the judge did not see the need to waste the
court's time even discussing it. Perhaps it is only relevant to the post,
finalised-order sanctions phase of the cases.
--- Regards
Ian Al
Linux: Genuine Advantage [ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, October 22 2007 @ 01:20 AM EDT |
I don't know if this has been asked before, but near as I can figure, I can't
see where the bankruptcy court would be able to interfere with arbitration,
until money is required to change hands. Especially arbitration occurring
outside US borders.
I can see where BK court has jurisdiction over spending money, and I can see
where it would have jurisdiction in US courts of law, but as a private action
between three (or more) parties, does BK court have legal entree to stay those
private proceedings, too? That is, beyond any requests to spend money, or being
obligated to pay any judgements. I can see the arbitrators staying of their own
accord, in deference to the court.
bkd
[ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, October 22 2007 @ 05:46 AM EDT |
The following SCO checks were were written in the 90 days prior to bankruptcy.
The list is sorted by check number, with divisions inserted to separate the
apparent checking accounts. The list does not include some small checks made to
any party who received less than $5,475 total in the 90 day period.
Check numbers starting with 601 appear to be the primary checking account. The
last check written on this account was for $13,600 made to "CASH",
which cleared on 9/13.
Check numbers starting with 015 appear to be the legal expenses escrow account.
The total checks shown in Q4 (starting from 8/1/2007) for this account is
$788,402.84. Subtracting this from the 7/31/2007 balance of $2,588,893 in the
Wells Fargo account, (believed to be the escrow account since it matches the
escrow amount shown in the 7/31 10Q), leaves $1,800,491. But the Wells Fargo
account is shown in Docket #130 to have a recent balance of only $754,252, a
difference of $1,046,239. This amount very closely matches the amounts shown in
Docket 130 to be owed to BS&F, AMICI, and Keven McBride, which total
$1,046,845.
The last 6 checks listed strangely show no check number. The first 4 checks
listed strangely show no amount. The date shown in column 2 is the date the
check cleared, not the date the check was written.
Chk # Clear date Amount Payee
------ ---------- ------ -----
000105 9/14 0.00 SALES SYNERGY CANADA
000107 9/14 0.00 VERISON
000109 9/14 0.00 CCI NETWORK SERVICES
000112 9/14 0.00 JACKSON HOLE ADVISORS
------------------------------------------------------
001001 7/25 4,179.03 SYKES GLOBAL SERVICES
------------------------------------------------------
003012 6/15 11,000.00 RESEARCH IN MOTION
003013 6/15 8,588.53 STEALTH INSIGHT
003014 6/29 9,527.16 STEALTH INSIGHT
003015 7/13 8,333.50 STEALTH INSIGHT
003018 8/17 7,303.91 ALOK MOHAN
003019 8/10 5,724.29 JANCARTHIER VOYAGES
003021 8/10 13,683.72 BOETTICHER, HASSE, LOH
------------------------------------------------------
004010 6/25 4,589.21 SYKES GLOBAL SERVICES
004011 8/24 4,572.67 SYKES GLOBAL SERVICES
------------------------------------------------------
015093 7/03 11,025.00 INTERNATIONAL CHAMBER
015097 7/12 27,225.00 CHRISTINE A BOTOSAN
015098 7/12 35,546.17 KEVIN MCBRIDE
015100 8/08 0.00 BOIES, SCHILLER & FLEX
015101 8/09 8,051.27 DORSEY & WHITNEY LLP
015103 8/09 17,132.96 HATCH JAMES & DODGE
015104 8/09 6,736.76 IKON OFFICE SOLUTIONS
015106 8/09 29,321.47 KEVIN MCBRIDE
015108 8/09 10,642.00 SAGE FORENSIC ACCOUNTI
015109 8/17 93,879.53 BOIES, SCHILLER & FLEX
015110 8/17 33,672.81 NORTH HARVARD GROUP LL
015111 8/17 94,977.89 NORTH HARVARD GROUP LL
015112 8/22 94,497.48 NORTH HARVARD GROUP LL
015113 8/22 90,400.00 GARY PISANO
015116 8/22 5,162.62 HATCH JAMES & DODGE
015117 8/22 37,139.00 SAGE FORENSIC ACCOUNTI
015118 8/22 32,175.00 CHRISTINE A BOTOSAN
015119 9/11 32,722.01 DORSEY & WHITNEY LLP
015120 9/11 38,995.15 HATCH JAMES & DODGE
015123 9/13 17,444.81 HATCH JAMES & DODGE
015124 9/13 863.42 DORSEY & WHITNEY LLP
015125 9/07 33,225.00 KEVIN MCBRIDE
015126 9/07 61,363.66 LENZ & STAEHELIN
015127 9/04 50,000.00 BERGER SINGERMAN PA
------------------------------------------------------
050106 6/18 31,911.90 NEW YORK LIFE
050109 6/25 15,505.92 FELIX EISENBERG
050110 6/29 33,356.55 NEW YORK LIFE
050111 7/16 21,660.35 NEW YORK LIFE
050117 7/26 7,949.81 FELIX EISENBERG
050120 7/30 21,425.09 NEW YORK LIFE
050123 8/06 10,000.00 FASANELLA SANDRA GRACI
050124 8/13 22,567.75 NEW YORK LIFE
050132 8/24 7,905.14 FELIX EISENBERG
050133 8/28 23,645.70 NEW YORK LIFE
050134 9/11 23,127.61 NEW YORK LIFE
050135 9/11 375,000.00 BERGER SINGERMAN PA
050136 9/11 75,000.00 PACHULSKI STANG ZIEHL
050137 9/11 100,000.00 DORSEY & WHITNEY LLP
050138 9/13 50,806.67 COLTRIN & ASSOCIATES,
050139 9/14 60,000.00 MICHAEL OLSON
050140 9/14 60,000.00 BERT YOUNG
050141 9/14 35,000.00 MEISROW FINANCIAL CONS
050142 9/14 25,000.00 EPIQ BANKRUPTCY SOLUTI
------------------------------------------------------
070013 8/14 20,000.00 KENT DERRICOTT
070014 8/24 1,000.00 RESEARCH IN MOTION
070015 8/24 1,681.04 MADSON & AUSTIN
070016 9/07 570.46 MADSON & AUSTIN
------------------------------------------------------
601114 6/15 3,923.79 AMERICAN EXPRESS
601115 6/15 3,798.69 CCI NETWORK SERVICES
601122 6/15 4,153.00 FULL COURT FINANCIAL
601124 6/15 6,090.00 HYPERION CONSULTING IN
601125 6/15 1,625.00 JONATHAN GALE
601126 6/15 565.60 KELLY SERVICES (TEMPS)
601128 6/15 13,255.00 MAIN 10
601130 6/15 18,179.91 ORACLE CORPORATION
601131 6/15 19.67 AT&T
601137 6/15 5,257.46 VERISON
601138 6/15 82.18 VERISON
601141 6/18 12,831.45 DORSEY & WHITNEY LLP
601143 6/18 6,250.00 TANNER & CO
601144 6/19 6,000.00 ALLAN CANTOS
601147 6/21 402.91 AT&T
601156 6/21 9,368.00 DIVERSIFIED INS TECHNO
601158 6/21 565.60 KELLY SERVICES (TEMPS)
601160 6/21 968.37 OFFICEMAX
601166 6/21 13,153.80 TRAVELERS
601168 6/21 1,130.87 UPS
601174 6/29 34,960.17 AMERICAN EXPRESS
601176 6/29 1,690.89 AT&T
601182 6/29 6,250.00 DATAVISION SOFTWARE
601189 6/29 25,200.00 FKI LOGISTICS
601194 6/29 4,137.62 FULL COURT FINANCIAL
601195 6/29 8,260.00 HYPERION CONSULTING IN
601197 6/29 2,079.50 INSIGHT
601198 6/29 1,131.20 KELLY SERVICES (TEMPS)
601200 6/29 927.42 OFFICEMAX
601201 6/29 3,110.54 PATSONS PRESS
601203 6/29 26,053.72 THOMSON PROMETRIC
601206 6/29 7,500.00 SALES SYNERGY CANADA
601211 6/29 1,123.73 UPS
601212 6/29 39,952.25 VERITAS SOFTWARE
601215 6/29 5,062.25 ZIONS BANK
601216 7/02 75,649.64 UNITED HEALTHCARE INSU
601218 7/01 49,950.89 GRE MOUNTAIN HEIGHTS
601219 7/01 9,000.00 HARMONIC INC
601220 7/01 46,631.56 THE CANOPY PROPERTIES
601226 7/06 75.50 VERISON
601227 7/06 2,248.82 VERISON
601231 7/09 0.00 VERITAS SOFTWARE
601233 7/11 73,649.64 UNITED HEALTHCARE INSU
601239 7/13 3,798.69 CCI NETWORK SERVICES
601243 7/13 16,253.78 DORSEY & WHITNEY LLP
601245 7/13 4,102.75 FULL COURT FINANCIAL
601248 7/13 8,952.18 JERSEY CENTRAL POWER &
601249 7/13 1,625.00 JONATHAN GALE
601250 7/13 4,852.50 MAIN 10
601253 7/13 19.46 AT&T
601254 7/13 2,699.55 PR NEWSWIRE
601255 7/13 64,613.99 PREMIUM ASSIGNMENT
601259 7/13 10,000.00 TANNER & CO
601261 7/13 558.59 UPS
601262 7/13 1,891.26 VERISON
601263 7/13 5,384.24 VERISON
601264 7/13 82.19 VERISON
601272 7/20 4,201.29 GRE MOUNTAIN HEIGHTS
601274 7/20 18,389.39 METROPOLITON LIFE INSU
601277 7/20 7,482.40 THE HARTFORD
601278 7/20 424.17 UPS
601282 7/23 5,300.00 JACKSON HOLE ADVISORS
601285 7/27 4,087.37 FULL COURT FINANCIAL
601286 7/31 10,175.00 ZIONS BANK
601289 8/01 8,460.65 AMERICAN EXPRESS
601297 8/01 12,305.16 INSIGHT
601298 8/01 2,650.00 JACKSON HOLE ADVISORS
601299 8/01 8,598.80 JERSEY CENTRAL POWER &
601300 8/01 2,318.96 KELLY SERVICES (TEMPS)
601303 8/01 25,000.00 OCEAN TOMO, LLC
601304 8/01 1,072.21 OFFICEMAX
601306 8/01 1,129.80 PR NEWSWIRE
601311 8/01 4,888.80 TRAVELERS
601313 8/01 1,078.14 UPS
601318 8/01 49,950.89 GRE MOUNTAIN HEIGHTS
601319 8/01 9,000.00 HARMONIC INC
601320 8/01 46,631.56 THE CANOPY PROPERTIES
601324 8/06 11,414.13 DORSEY & WHITNEY LLP
601325 8/06 7,500.00 SALES SYNERGY CANADA
601327 8/06 13,321.00 TANNER & CO
601328 8/08 4,087.37 FULL COURT FINANCIAL
601330 8/08 28,719.17 KEVIN MCBRIDE
601333 8/10 7,368.73 THE HARTFORD
601335 8/13 5,140.51 AT&T
601343 8/13 540.23 UPS
601344 8/13 1,987.09 VERISON
601345 8/13 1,935.97 VERISON
601347 8/14 90,738.62 UNITED HEALTHCARE INSU
601348 8/15 2,500.00 TANNER & CO
601352 8/17 3,625.76 AMERICAN EXPRESS
601353 8/17 3,780.51 CCI NETWORK SERVICES
601367 8/17 2,650.00 JACKSON HOLE ADVISORS
601369 8/17 1,210.23 KELLY SERVICES (TEMPS)
601371 8/17 6,463.75 LOGO IMAGES
601373 8/17 2,849.95 PATSONS PRESS
601374 8/17 64,613.99 PREMIUM ASSIGNMENT
601381 8/17 2,030.59 UPS
601382 8/17 8,750.00 X/OPEN COMPANY LIMITED
601384 8/20 8,750.00 RALPH YARRO
601388 8/24 10,080.00 ARKEIA CORPORATION
601390 8/24 15,000.00 COLTRIN & ASSOCIATES,
601396 8/24 6,355.09 DIVERSIFIED INS TECHNO
601397 8/24 4,087.37 FULL COURT FINANCIAL
601398 8/24 2,150.00 JONATHAN GALE
601399 8/24 565.60 KELLY SERVICES (TEMPS)
601400 8/24 12,748.50 MAIN 10
601402 8/24 1,625.88 OFFICEMAX
601403 8/24 20.95 AT&T
601404 8/24 1,437.80 PR NEWSWIRE
601407 8/24 7,500.00 SALES SYNERGY CANADA
601414 8/24 137.50 THE CANOPY PROPERTIES
601415 8/24 687.03 UPS
601416 8/24 1,925.62 VERISON
601417 8/24 5,065.14 VERISON
601423 8/24 5,794.63 BOIES, SCHILLER & FLEX
601424 8/24 11,250.00 DAN CAMPBELL
601425 8/24 11,250.00 DUFF THOMPSON
601426 8/24 11,040.61 OMAR LEEMAN
601427 8/24 3,511.74 MADSON & AUSTIN
601428 8/24 10,694.06 J KENT MILLINGTON
601429 8/24 8,750.00 DARCY MOTT
601430 8/24 15,155.27 NATIONAL ECONOMIC RESE
601432 8/24 13,460.00 TANNER & CO
601433 8/24 8,750.00 RALPH YARRO
601435 8/29 13,500.00 G2 COMPUTER INTELLIGEN
601440 8/31 7,239.60 AMERICAN EXPRESS
601450 8/31 3,972.45 INSIGHT
601451 8/31 1,219.58 KELLY SERVICES (TEMPS)
601452 8/31 3,040.56 LOGO IMAGES
601454 8/31 13,760.00 MICROLITE CORPORATION
601455 8/31 1,636.24 OFFICEMAX
601458 8/31 911.40 PR NEWSWIRE
601460 8/31 1,906.80 TRAVELERS
601465 9/04 49,950.89 GRE MOUNTAIN HEIGHTS
601466 9/04 46,631.56 THE CANOPY PROPERTIES
601467 9/05 2,340.00 HARMONIC INC
601470 9/07 2,712.93 AT&T
601474 9/07 7,796.00 DORSEY & WHITNEY LLP
601475 9/07 4,444.89 FULL COURT FINANCIAL
601478 9/07 7,935.21 JERSEY CENTRAL POWER &
601480 9/07 1,526.21 LOGO IMAGES
601481 9/07 5,023.72 MADSON & AUSTIN
601482 9/07 14,746.50 NATIONAL ECONOMIC RESE
601483 9/07 89.50 OFFICEMAX
601484 9/07 680.40 PR NEWSWIRE
601485 9/07 64,613.99 PREMIUM ASSIGNMENT
601486 9/07 10,178.75 SILVERMAN HELLER ASSOC
601489 9/07 10,042.00 TANNER & CO
601490 9/07 7,690.48 THE HARTFORD
601491 9/07 632.59 UPS
601492 9/07 2,676.52 VERISON
601496 9/11 28,701.56 DORSEY & WHITNEY LLP
601498 9/11 2,450.00 JONATHAN GALE
601499 9/11 3,869.00 KENT DERRICOTT
601500 9/11 684.60 PR NEWSWIRE
601501 9/11 17,500.00 TANNER & CO
601507 9/11 8,307.49 METROPOLITON LIFE INSU
601510 9/13 13,600.00 CASH
------------------------------------------------------
?????? 7/27 8,333.50 STEALTH INSIGHT
?????? 8/14 8,333.50 STEALTH INSIGHT
?????? 8/24 10,030.14 STEALTH INSIGHT
?????? 8/24 453.47 MADSON & AUSTIN
?????? 8/24 7,500.00 NELLYMOSER INC
?????? 9/11 8,333.00 STEALTH INSIGHT
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