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SCO Response to Novell's Motion for Order Directing SCO to Pay them Undisputed Future SVRX Royalties - Updated as text |
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Friday, October 26 2007 @ 07:11 PM EDT
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SCO has now filed its response to Novell's motion requesting the court to order SCO pay it all future SVRX royalties upon receipt. Of course, they don't want that. From Pacer: 166 -
Filed & Entered: 10/26/2007
Response (B)
Docket Text: Response to Debtors' Response in Opposition to Novell, Inc.'s Motion for Order Directing the Debtors to Remit Undisputed Future SVRX Royalties to Novell Upon Receipt (related document(s)[90] ) Filed by The SCO Group, Inc. (Attachments: # (1) Certificate of Service and Service List) (O'Neill, James)
167
Filed & Entered: 10/26/2007
Declaration in Support
Docket Text: Declaration in Support Declaration of Jean Acheson in Support of Debtors' Response to Novell, Inc.'s Motion for Order Directing the Debtors to Remit Undisputed Future SVRX Royalties to Novell Upon Receipt (related document(s)[166], [90] ) Filed by The SCO Group, Inc.. (Attachments: # (1) Certificate of Service) (O'Neill, James) I guess this means Ms. Acheson didn't get the ax when the Finance Department was downsized. She swears there was a verbal agreement with Novell for years that SCO should "simply net their 5% administrative fee and the third-party royalties against the funds due to Novell." A verbal agreement. Then in October of 2003, the two went back to the method outlined in the APA, and then Novell "never once remitted to the Debtors the 5% administrative fee." On that basis, SCO -- surprise! -- accuses Novell of unclean hands. What? No felonies? Without even knowing if this latest smear is true or not, let's just imagine that it is. Might Novell be thinking that SCO owes them $36 million yet is doing all in its power to avoid paying? You think? Then, making SCO's accusation even more laughable, it claims that Novell breached the agreement first by not paying the 5%. I'm sorry. The bankruptcy judge might not know the history here, but I do. The Sun and Microsoft payments, which the Honorable Dale Kimball has ruled were in part payments that were due to Novell but never paid, were executed long before October of 2003, as you can verify in this transcript of a SCO teleconference in May of 2003. SCO is making the distinction that they never breached the *undisputed* royalties, so they are the good guys. It's pitiful. This has to be the low point in this saga so far. As one reader puts it, "Man, if only these people fought so bitterly and tirelessly for what is good,
right,
and true."
Update: We have, thanks to fred and Steve Martin, the document now in text. This is our first real look at SCO's new attorneys' style. I guess I'd describe it as just as whiny as Boies Schiller, and just as honest in portraying SCO as the victim, but they are a lot meaner and snarkier.
Because they specialize in bankruptcy, they naturally would be good at procedural aspects and you'd expect them to look for any procedural errors and to be able to cite various sections of the Bankruptcy Code. But what to make of an argument that the judge shouldn't grant Novell's request for immediate payment of the undisputed royalties going forward -- nay, that he lacks the power to do so -- because it would be adding a term to the contract? Then they go on to relate that in fact, that is exactly what the parties did for the most of the years the APA has been in force. It was only in 2003 that they went back to the way the APA says to do it, and yet it would be unthinkable and undoable to go back again to the prior system or something like it. Might SCO's lawyers have forgotten this term of the APA that Novell pointed out in its motion: SCO is required "to [re]assign any rights to ... any SVRX License to the extent so directed in any manner or respect by" Novell. APA § 4.16(b). Might the new arrangement in 2003 be because Novell tried and tried to get SCO to provide monthly audit reports, as required under the APA, and couldn't get SCO to do it? You think? As Groklaw member DaveJakement points out in a comment on an earlier article, there were a number of breaches by SCO, as set forth in the Hon. Dale Kimball's August 10 ruling: Do I recall SCO failing to respond to Novell's requests for an audit? Prior to October 2003?
From the August 10 Ruling:
Novell also seeks the equitable remedy of accounting under its Ninth Claim for Relief. The APA obligates SCO to give detailed monthly reports and to comply with audits. APA §§ 1.2(b), (f). To the extent that SCO has failed to comply with these requirements with respect to the 2003 Sun and Microsoft Agreements, the court notes that it has a continuing duty to fulfill its contractual obligations. Novell also has continuing rights under the APA to conduct audits as to SVRX Royalties.
And:
On February 25, 2003, SCO executed an agreement with Sun in which Sun paid SCO approximately $10 million for the right to use, reproduce, prepare derivative works, market, disclose, make, and sell certain UNIX technology, including source and object (binary) code.
And:
SCO also executed an agreement with Microsoft on April 30, 2003, and several amendments to that agreement over the following three months. Id. Ex. 11, 12 ("2003 Microsfot [sic] Agreement"). Microsoft paid SCO $16,750,000 for the license rights, a liability release, and for options to purchase additional licenses. Id. §§ 1, 3.5, 4.1. Under the Agreement, Microsoft received various rights to UNIX System V technology. SCO agreed to deliver to Microsoft this UNIX System V software in both binary and source form, which includes the same versions of Unix System V software that are expressly referenced as SVRX Licenses in the APA.
SCO did not contact Novell for approval before executing the 2003 Sun Agreement or the 2003 Microsoft Agreement. And Novell did not authorize either agreement. The agreements gave SCO its first profitable year in history. Id. Ex. 7 at 9. SCO never remitted to Novell any monies it received from either of the agreements. Decl. Joseph LaSala at ¶ 4.
On July 11, 2003, when Novell had not received any royalty reports from SCO for over half a year, it sent SCO a letter demanding royalty reports and payments as required by the APA. Id. ¶ 6, Ex. 1. In response, on July 17, 2003, SCO submitted limited royalty payments from November 2002 through May 31, 2003. Id. Ex. 2. These payments did not mention any royalties from the 2003 Sun or Microsoft Agreements. Id. ¶ 6. To date, SCO has still not provided those audits, despite the APA requiring it to do so every month. So when I read SCO's attorneys arguing that SCO has never failed to make a payment or that Novell has unclean hands, my eyes pop out. As you can see, Novell was not the first to breach the APA (not that there is any evidence that it ever has, other than a SCO employee whose testimony was not viewed as overwhelmingly dispositive in the Utah case and who is listed on the creditors' list), not by a long shot, and there is an historical basis for Novell to be worried about SCO ever paying what the court and the APA say it should. As for SCO's argument that Novell asking for its money is no different than goods in a warehouse, I see a distinction: SCO is a fiduciary for Novell in the APA arrangement, so none of the money is SCO's from the moment it arrives. That being so, it can hardly argue it needs it for its reorganization or that there is no harm if Novell has to wait a bit. The goods might still be there; but the cash might not, at the rate it is flowing out to lawyers and employees. That's not even going into the new vaporware proposed sale. Now, the document wouldn't bother me much if they just made the arguments; but the tone throughout is that same mock indignation that we found so offensive in Utah District Court. It didn't work there, but it might here. Things go much faster here in bankruptcy court, and the new judge hasn't got 4 or 5 years to get to know the situation. So here comes SCO, telling it their new way, and who is to say that they are ... well... stretching it? The new story, I gather, is that the APA is so ambiguous a document that the court shouldn't view the Kimball August 10th ruling as meaning much. He didn't find it ambiguous in the least, and I find SCO's new description insulting to another court. For example, SCO says that "Novell has been litigating the import of this
ambiguous document for almost four years." Excuse me, but the case is called SCO v. Novell not Novell v. SCO. It's little touches like that where you get to see the personality of a firm. Cravath, for example, would have said "The parties have been litigating..." Morrison & Foerster would have said, "SCO argued forcefully in District Court that the APA was ambiguous, but the judge found otherwise." As for the description of the arbitration as an action brought against SCO, when in reality it is merely a branch off of the action SCO started againt Novell, what can I say? The new judge may not know the difference, not having gotten his PhD in SCO the way I have. And SCO needs to say something to justify not paying Novell, and I gather the hook will be that the APA is so hard to comprehend that everyone should take it with a grain of salt until the appeals court can weigh in on it. In short, SCO, having lost in Utah District Court, now wants to start over from scratch. Of course by then, all the money will be gone, preferably, I gather, in severance and bonus packages to management instead of to Novell, but, hey, what are lawyers for? If you have discerned that I don't admire this performance, you are correct. I don't belong to the school of thought that says that lawyers can say just anything to win.
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IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE
In re: | ) | Chapter 11 |
| ) | |
The SCO GROUP, INC., et al.,1 | ) | Case No. 07-11337 (KG) |
| ) | (Jointly Administered |
| ) | |
Debtors. | ) | Related Docket No. 90 |
DEBTORS' RESPONSE IN OPPOSITION TO NOVELL, INC.'S MOTION FOR ORDER DIRECTING THE DEBTORS TO REMIT UNDISPUTED FUTURE SVRX ROYALTIES TO NOVELL UPON RECEIPT
The Debtors oppose Novell, Inc.'s Motion for Order Directing the Debtors to Remit
Undisputed Future SVRX Royalties to Novell Upon Receipt (D.E. No. 90) (the "Motion")
because:
(1) The very agreement upon which Novell bases its Motion does not provide for the
immediate, on receipt, payment of royalties in the manner Novell now seeks this Court to require
by way of an order;
(2) Novell's demand for the Court to use 11 U.S.C. § 105(a) to modify Novell's
agreement with the Debtors because of the filing of this Chapter 11 case and "SCO's historical
financial performance" is an attempt to impose a non-existent ipso facto clause in a manner
explicitly prohibited by ll U.S,C. § 365(e)(l); and
(3) Novell lacks the clean hands required to seek equitable relief because it has been
breaching the agreement for years by offsetting the Debtors' 5% administrative fee.
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The Motion should be denied.
FACTUAL BACKGROUND
The Debtors agree with the Motion's description of the pertinent terms of the Asset
Purchase Agreement ("APA"). Indeed, there is one undisputed crucial fact that Novell cannot
ignore: the APA provides that payment to Novell is not due until 45 days after the close of the
previous quarter. See section 4.l6(a) of the APA, page 24. Even Novell admits this fact. See
Jones Affidavit at 16. Nothing in the APA permits Novell to unilaterally change or modify this
payment term, and Novell has not cited a single provision in the APA that provides it with any
such authority.
The Debtors also do not disagree that the parties to the APA agreed to denominate the
royalties collected by the Debtors as the property of Novell. But that being said, these funds
2
were no less the property of Novell from the day the parties inked the deal. Notwithstanding that
the royalties collected by the Debtors would be property of Novell, Novell contracted to allow
that property to be held by the Debtors until 45 days after the close of the quarter in which they
were collected. Novell now wants the Court to order relief that Novell never contracted to
receive.
Analogizing Novell's argument to other settings under the Bankruptcy Code shows the
unusual -- and improper -- relief it seeks. When a company that operates a warehouse
commences a Chapter 11 case, its customers, who hold title to the goods stored there, cannot
demand return of the stored goods when the terms of the underlying storage contract do not so
provide. Indeed, when any business files for Chapter 11 relief, the company's equipment lessors,
which hold undisputed title to the equipment leased to the debtor, cannot simply demand the
return of "their" equipment. Instead, the terms of the storage contracts or leases still apply unless
and until they are rejected by the debtor-in-possession. Novell makes no logical argument as to
3
why the normal rules should not apply to the APA. Indeed, it has not cited a single case in which
a court granted a request similar to that which it seeks in the Motion.
Nowhere in the Motion does Novell state (because it cannot) that the Debtors (or their
predecessors in interest) have ever failed to remit the required royalty payments in a timely
fashion in the 12 years since the APA was executed. Instead, by making the timely, required
post-petition payment of the royalties due for the third quarter of 2007, the Debtors have
demonstrated (or will demonstrate) that they intend to perform in accordance with the terms of
the APA.
According to Novell, the total annual expected revenues to be paid by the Debtors under
the APA is between $500,000 and $800,000. See Jones Afiidavit at § 5. Given the declining
revenues that the Debtors have experienced, the Debtors believe that the higher estimate appears
to be too high. But even using the high end of Novell's estimate, the next quarterly payment due
in February 14, 2008 will be only $200,000. Novell has no factual, historical or other basis to
fear, nor has it cited to any in its Motion, that would establish that this relatively small amount of
royalties will not be on hand when due.
A. NOVELL IS SEEKING TO HAVE THIS COURT IMPOSE INTO THE APA AN
UNENFORCEABLE IPS0 FACTO CLAUSE
The APA is a long and complex document. Novell has been litigating the import of this
ambiguous document for almost four years. If there were an ipso facto clause in the APA, surely
Novell would have cited it in the Motion. It did not. Based on the absence of a such a citation, it
is fair to assume that there is no ipso facto clause permitting Novell to exercise its right to either
4
terminate the APA or to effectuate any particular change in its terms as a result of SCO's
bankruptcy.
Nevertheless, what Novell failed to provide for in the APA — and what was never
intended by the parties — it now asks the Court to impose. Such relief, of course, is barred by the
Bankruptcy Code. Section 365(e)(1) of the Bankruptcy Code makes clear that an executory
contract of the debtor "may not be terminated or modified, and any right or obligation under such
contract ... may not be terminated or modified, at any time after commencement of the case
solely because of a provision in such contract ... that is conditioned on (A) the insolvency or
financial condition of the debtor at any time before the closing of the case; (B) the
commencement of a cause under this title [.]" 11 U.S.C. § 365(e)(1) (emphasis added).
Novell asks this Court to do through 11 U.S.C. § 105(a), see Motion at p. 9, that which
§ 365(a)(1) prohibits. Specifically, Novell seeks to modify the terms of the APA by having this
Court change the payment terms from the required 45 days after the prior quarter, to an
immediate payment of royalties upon receipt. Novell's only stated reason for such a violent
rewrite of that term is because of the Debtors' purported post-bankruptcy financial condition.
Respectfully, this Court does not have the authority to do so, even under the "powerful, versatile
tool" of 11 U.S.C. § 105(a). Indeed, the Third Circuit case cited by Novell at p. 9 of the Motion
makes clear that 11 U.S.C. § 105(a) can be used only to "fashion order(s) in furtherance of
Bankruptcy Code provisions." Joubert v. ABN AMRO Mortgage Group, Inc., 411 F.3d 452, 455
(3d Cir. 2005)(emphasis added). It is black letter law that 11 U.S.C. § 105(a) cannot be used to
circumvent provisions found elsewhere in the Bankruptcy Code. See, e.g., Norwest Bank
Worthington v. Ahlers, 485 U.S. 197, 206 (1988) (a bankruptcy court's general and equitable
powers "must and can only be exercised within the confines of the Bankruptcy Code"); In re
5
Momentum Mfg. Corp., 25 F.3d 1132, 1136 n.4 (2nd Cir. 1994) ("a bankruptcy court may not
exercise this [§ 105(a)] power in contravention of provisions of the Code"); In re C-L Cartage
Co., Inc., 899 F.2d 1490, 1494 (6th Cir. 1990)(bankruptcy courts "cannot use equitable powers to
disregard unambiguous statutory language"); In re Vision Metals, Inc., 311 B.R. 692, 700
(Bankr. D. Del. 2004)("We agree that Demang that Debtor cannot utilize section 105 to create a
result directly contrary to the express provisions of the [Bankruptcy] Code.").
Therefore,
because the only basis cited for Novell for the extraordinary relief it seeks is one prohibited by
the Bankruptcy Code itself, 11 U.S.C. § 105(a) cannot be a basis for granting the Motion.
B. NOVELL LACKS THE CLEAN HANDS NECESSARY TO SEEK AND OBTAIN
EQUITABLE RELIEF FROM THIS COURT
As attested to by Jean Acheson, the Debtors' Controller (see Exhibit A, the attached
Declaration of Jean Acheson), there was a longstanding verbal agreement between Novell and
the Debtors' predecessor (continued by the Debtors) that the Debtors should simply net their 5%
administrative fee and the third-party royalties
against the funds due to Novell.
In October 2003, this verbal agreement came to an end. The parties then went back to the
method set forth in the APA. What Novell failed to explain in the Statement of Facts portion of
the Motion was that the APA obligated Novell to repay the Debtors the 5% administrative fee
within five days after Novell received the undisputed royalties from the Debtors. See section
4.16(a), p. 24. When the parties returned to the payment protocol under the APA, the Debtors
6
remitted to Novell the undisputed Novell royalties, but Novell never once remitted to the Debtors
the 5% administrative fee as it was required to do. Therefore, SCO wound up coming out of
pocket to pay the third-party royalties. When there were enough undisputed royalties owed to
Novell, the Debtors would offset the amounts due by Novell to the Debtors against the
undisputed royalties it then paid to Novell. This method is what has been happening for the last
four years.
Because Novell was the party that first breached the APA by failing to remit the 5%
administrative fee within the five-day period required, Novell hardly has the right to seek
equitable relief now, and certainly when the relief it seeks is not required or even permitted
under the APA itself.
[Remainder of page intentionally left blank]
7
CONCLUSION
For all of the foregoing reasons, the Court should deny Novell's Motion, and grant the
Debtors such other and further relief as the Court deems just.
Dated: October 26, 2007
PACHULSKI STANG ZIEHL & JONES LLP
(signature)
Laura Davis Jones (Bar No. 2436)
James E. O'Neill (Bar No. 4042)
Rachel Lowy Werkheiser (Bar No. 3753)
[address]
[phone]
[fax]
[email addresses]
and
BERGER SINGERMAN, P.A.
Paul Steven Singerman
Arthur J. Spector
Grace E. Robson
[address]
[phone]
[fax]
and
[address]
[phone]
[fax]
[email addresses]
Co-Counsel for the Debtors and Debtors-in-Possession
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1The Debtors and the last four digits of each of the Debtors’ federal tax identification numbers are as follows:
(a) The SCO Group, Inc., a Delaware corporation, Fed. Tax Id. #2823; and (b) SCO Operations, Inc., a Delaware
corporation, Fed. Tax ID. #7393.
2 The Motion is procedurally improper as the relief Novell requests should have been presented in
an adversary proceeding. The Motion requests the Court "to order SCO to immediately remit," calling
the relief it seeks a request for the Court to use its "equitable powers." Rule 7001(7) of the Federal Rules
of Bankruptcy Procedure provides that a litigant must commence an adversary proceeding "to obtain an
injunction or other equitable relief." The type of equitable relief that Novell requests is nothing less than
a mandatory injunction directing action on the part of another. Bryan A. Garner, editor in chief, Black's
Law Dictionary, "injunction -- 'mandatory injunction'", p. 8OO (8th edition 2004)("An injunction that
orders an affirmative act or mandates a specified course of conduct."). Accordingly, it is relief that must
be sought, if at all, in the form of an adversary proceeding.
Nevertheless, the Debtors, unlike Novell (which, in its subsidiary's response to the Debtor's
Motion to Enforce the Automatic Stay, raised technical procedural issues to attempt to block a
determination on the merits of whether the automatic stay applies to a pending arbitration in Switzerland
that was commenced against SCO Group, Inc.), do not object to Novell's procedural faux pas in making
its request by motion.
3 The APA was attached as Exhibit A to the Affidavit of Greg Jones that was attached as Exhibit A
to the Motion. Novell's recitation of some of the Utah District Court's rulings, however, is unnecessary
to the determination of the issues in this contested matter, and the Debtors neither admit nor deny those
allegations.
4The Debtors' predecessor-in-interest, The Santa Cruz Operation, Inc., was the original party to
the APA.
5 There are good grounds to argue about the efficacy of a pre-petition contractual term describing
cash received by, but not segregated by Party A (the debtor), for the benefit of Party B (the creditor), as held in "trust" for the nondebtor party. See, e.g., In re Auto-Train Corp., Inc., 810 F.2d 270, 275 (D.C.
Cir. 1987):
In a very limited number of cases involving what would normally be considered a debtor-creditor relation, courts have found specific funds subject to a trust in favor of a creditor.
In many of these cases the trust is imposed by virtue of a state statute designed to provide
additional protection to certain types of creditors, usually contractors. See, e. g., Selby v.
Ford Motor Co., 590 F.2d 642, 647 (6th Cir. 1979); Carrier Corp. v. J.E. Schecter Corp.,
347 F.2d 153, 155 (2d Cir. 1965). In cases not involving such a statute, the courts have
uniformly required a contract irrevocably obligating the debtor both to segregate the
"trust funds" from the debtor's own funds and to deliver the "trust funds" to the creditor.
In a footnote, the court stated that the foregoing analysis "is true irrespective of whether the analysis is
conducted under the rubric of express trust or constructive trust." Id. at n. 1.
Regardless, the Debtors have been paying -- and plan to continue to pay -- all ordinary course
expenses in the ordinary course, and will not discriminate against Novell on account of its
overzealousness.
6See Exhibit A, Declaration of Jean Acheson, attached hereto.
7 In Vision Metals, the debtor filed a motion requesting the Court to use 11 U.S.C. § 105(a) to
vacate an earlier order in which the Court approved the assumption of a contract. In holding that it could
not use § 105(a) in that fashion, the court reasoned: "If, as the Debtor suggests, section 105 could be used
to avoid an assumption order, then section 365(g)(2)(A) would be eviscerated. This is not permitted." Id.
at 700.
8"Third-part royalties" refers to the fact that for each unit of SVRX software sold there may be
royalties owed to other parties besides Novell. For example, the Debtors paid Microsoft $5.00 for each
unit sold.
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IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE
In re:
The SCO GROUP, INC., et al.,
Debtors.
___________________
Chapter 11 Cases
Case No. 07-11337 (KG)
(Jointly Administered
DECLARATION OF JEAN ACHESON IN SUPPORT OF DEBT0RS' RESPONSE TO
NOVELL, INC.'S MOTION FOR ORDER DIRECTING THE DEBTORS TO REMIT
UNDISPUTED FUTURE SVRX ROYALTIES TO NOVELL UPON RECEIPT
Jean Acheson declares as follows:
1. I am over the age of 18 years and am competent to give this testimony.
2. I am the controller of The SCO Group, Inc., and the controller of SCO
Operations, Inc.
3. I have been employed by The SCO Group, Inc. since its purchase of the UNIX
product line in 2001 and before that worked for its predecessor, The Santa Cruz Operation from
1995 to 2001. I am familiar with the matters about which I testify herein.
4. From even before the inception of The SCO Group, Inc., Novell, Inc. and The
SCO Group, Inc.'s predecessor, The Santa Cruz Operation, Inc. ("Santa Cruz"), had a verbal
agreement and course of dealing whereby, notwithstanding the terms of the Asset Purchase
Agreement ("APA") between Novell, Inc. and Santa Cruz, the Debtors (and their predecessor in
interest) would net their 5% administrative fee provided for under the APA and the third-party
royalties against the undisputed royalties due to Novell under the APA.
5. In October 2003, this course of dealing came to an end.
1
6. Since that time, the Debtors have repaid Novell all of the undisputed royalties on
a timely basis, but Novell has failed to ever repay the Debtors the 5% administrative fees due to
the Debtors under section 4.16(a) of the APA.
7. As a result of Novell's failure to remit the 5% administrative fee and the third-party royalty reimbursement, the Debtors have been required to come out of pocket to repay
third-party royalties.
8. To repay itself, the Debtors have set off against the undisputed royalties the 5%
administrative fee and the third-party royalty fees once sufficient royalties were accumulated to
do so.
9. This course of dealing has lasted for approximately the last four years.
10. I am preparing for payment to Novell the next royalty check for delivery by
November 1, 2007.
11. This concludes my declaration.
I declare under penalty of perjury that the foregoing is true and correct. Executed on
October 26, 2007. ____[signature]___
Jean Acheson
2
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Authored by: Anonymous on Friday, October 26 2007 @ 07:26 PM EDT |
Oh Lawd! [ Reply to This | # ]
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Authored by: overshoot on Friday, October 26 2007 @ 07:35 PM EDT |
Nifty instructions in red let you do clicky links and prettyprinting! [ Reply to This | # ]
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Authored by: Anonymous on Friday, October 26 2007 @ 07:37 PM EDT |
For the first time I can remember, SCO files a motion that sounds convincing.
Maybe I'm just unfamiliar with bankruptcy law and the history of performance
under the APA, but it sure feels like SCO has hired some new (and competent for
a change) lawyers.
Yeah, the bit about limits on 11 USC 105a should have been chopped down to a
single short paragraph, but it's hard to fault a laywer for finding case law.
The last couple paragraphs (arguing Novell has "unclean hands" for
failing to return the 5% fee on time over the last four years) were interesting.
If this were true, wouldn't we have heard about it during the Novell
litigation? Was I snoozing, or is SCO conveniently finding new
"facts" at the last minute?
[ Reply to This | # ]
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Authored by: overshoot on Friday, October 26 2007 @ 07:41 PM EDT |
Please summarize the error in the title [ Reply to This | # ]
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- The error in the title - Authored by: Anonymous on Friday, October 26 2007 @ 07:50 PM EDT
- comprehent > comprehend - Authored by: finman on Saturday, October 27 2007 @ 10:08 AM EDT
- "...good as procedural..." -> "...good at procedural..." - Authored by: Anonymous on Saturday, October 27 2007 @ 10:12 AM EDT
- Footnote indenting of text version - Authored by: vtleslie on Saturday, October 27 2007 @ 12:42 PM EDT
- Chapter l1 -> Chapter 11 - Authored by: gus_goose on Saturday, October 27 2007 @ 12:44 PM EDT
- Jakement -> Jakeman - Authored by: Anonymous on Saturday, October 27 2007 @ 02:52 PM EDT
- More OCR errors - Authored by: Anonymous on Saturday, October 27 2007 @ 02:56 PM EDT
- "November l, 2007" - Authored by: Anonymous on Saturday, October 27 2007 @ 03:18 PM EDT
- "ll. This concludes my declaration" - Authored by: Anonymous on Saturday, October 27 2007 @ 03:20 PM EDT
- "APA say it should" -> "APA says it should" - Authored by: UncleJosh on Saturday, October 27 2007 @ 03:49 PM EDT
- 200l => 2001 - Authored by: Anonymous on Saturday, October 27 2007 @ 04:40 PM EDT
- Corrections here, please - Authored by: fredex on Saturday, October 27 2007 @ 06:14 PM EDT
- s/fred/Fred/ - Authored by: Anonymous on Saturday, October 27 2007 @ 09:16 PM EDT
- foot - note links have some errors. - Authored by: grundy on Saturday, October 27 2007 @ 10:45 PM EDT
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Authored by: overshoot on Friday, October 26 2007 @ 07:43 PM EDT |
The all-new standard thread section. [ Reply to This | # ]
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Authored by: Anonymous on Friday, October 26 2007 @ 07:43 PM EDT |
So let's see. You owe me a lot of money and I have some of your property in my
possession. I don't return your property because you owe me money. I believe
that there generally exists a right of set-off unless the contract specifically
says that there is not one. Hmmm, maybe Novel has what is rightfully theirs,
then again maybe the contract states that there is no right of set-off. I bet 2
old SGI machines (you pay the freight) that the the judge makes Novel give the
estate the 5% unless it can show that it has been paid. Any takers? [ Reply to This | # ]
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Authored by: om1er on Friday, October 26 2007 @ 07:54 PM EDT |
From the motion in opposition:
Nowhere in the Motion does Novell
state (because it cannot) that the Debtors (or their predecessors in interest)
have ever failed to remit the required royalty payments in a timely fashion in
the 12 years since the APA was executed.
I think the "because it
cannot" is a bit too snarky. What about the $36,000,000 that SCOG didn't
send to Novell when they should have? Was that mentioned by Novell? These may
be better lawyers, but some of what they say sure can set the blood to boiling
and the stomach to turning!
--- August 10, 2007 - The FUD went thud. [ Reply to This | # ]
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Authored by: TheBlueSkyRanger on Friday, October 26 2007 @ 08:06 PM EDT |
Hey, PJ!
Don't give 'em any ideas!
Dobre utka,
The Blue Sky Ranger[ Reply to This | # ]
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Authored by: Anonymous on Friday, October 26 2007 @ 08:08 PM EDT |
I don't believe Novell thought their motion would proceed. They were using it as
stalking horse to introduce the APA and Kimball judgement into the
proceeding.
It served its purpose and can now be discarded. [ Reply to This | # ]
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Authored by: Anonymous on Friday, October 26 2007 @ 08:15 PM EDT |
Can someone refresh my memory (I can't find the docs at the moment) about
whether or not (early in the saga), Novell did an audit of SCO's royalty
activities per the APA and found several million dollars in unremitted $$$ ?
ISTRC that the entire audit was put on hold because of SCO claiming that the
royalties it did NOT pay Novell were actually SCO-Source linux licenses and that
the money was NOT due to Novell. (Perhaps SCO provided some 'gratis' Linux
licenses to the UNIX licensees ?
Anyway there was a side-stink about Novell not being able to collect because the
whole question of license amounts & what they were for was being litigated
with IBM.
As far as I know, Novell is still waiting for their money.
I remember (possibly falsely) that SCO had gotten to the point where they were
not remitting ANY money to Novell - not 100%, not 95%, not even 5% - but
NOTHING. That's when Novell threatened to file suit, and I think that's what
the aborted hearing before Judge Kimbal was to be about - back royalties to
2003/2004.[ Reply to This | # ]
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Authored by: TheBlueSkyRanger on Friday, October 26 2007 @ 08:15 PM EDT |
Hey, everybody!
Okay, seriously. Is Novell after more than we realize?
What if it's not about money? If Novell gets a judgment in their favor, and SCO
can't pay up, does Novell get control of SCO? Records, everything? I just
can't believe it's as simple as money.
Dobre utka,
The Blue Sky Ranger[ Reply to This | # ]
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Authored by: Anonymous on Friday, October 26 2007 @ 08:28 PM EDT |
Regardless, the Debtors have been paying - and plan to continue to
pay - all ordinary course
expenses in the ordinary course, and wil not
discriminate against Novell on account of its
overzealousness. [ Reply to This | # ]
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Authored by: Khym Chanur on Friday, October 26 2007 @ 09:31 PM EDT |
I was hoping that SCO would have tried to claim the entirety of the SVRX
royalties; that would have been vastly entertaining. Instead, they merely claim
that Novell owes them 5% of the royalties collected over the past 4 years.
Ho-hum. --- Give a man a match, and he'll be warm for a minute, but set
him on fire, and he'll be warm for the rest of his life. (Paraphrased from Terry
Pratchett) [ Reply to This | # ]
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Authored by: Anonymous on Friday, October 26 2007 @ 11:13 PM EDT |
Is the use of the term "Asset Purchase Agreement" so standard as to be
the
typical term used for this sort of contract, or is it a deliberate jibe or
reference
to the old "Excluded Assets" APA we all know and love?
I can't help but feel that this complex, arcane "APA" is meant as a
-- what?
Imitation of? Homage, or coda to? -- the original.
Man, if only these people fought so bitterly and tirelessly for what is good,
right,
and true.
[ Reply to This | # ]
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Authored by: Anonymous on Friday, October 26 2007 @ 11:17 PM EDT |
It seems that SCO is arguing that Novell has withheld revenue that should have
redounded to SCO ... but, surely *SCO* collects the revenue and *SCO* passes
on the 95%, and the 5% that SCO gets is its compensation for precisely this
service? How could Novell be withholding SCO's 5% if SCO gets the money first?
[ Reply to This | # ]
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Authored by: mobrien_12 on Saturday, October 27 2007 @ 12:36 AM EDT |
"She swears there was a verbal agreement with Novell for years that SCO
should "simply net their 5% administrative fee and the third-party
royalties against the funds due to Novell." A verbal agreement. Then in
October of 2003, the two went back to the method outlined in the APA, and then
Novell "never once remitted to the Debtors the 5% administrative fee."
On that basis, SCO -- surprise! -- accuses Novell of unclean hands."
Just when I think they can't do anything that would shock me and lower my
opinion of them any further.
I read the above quote and my immediate response of incredulity was unprintable
according to the forum guidelines.[ Reply to This | # ]
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Authored by: Anonymous on Saturday, October 27 2007 @ 02:10 AM EDT |
Is there ONE CEO, ONE Board Member of ANY Corporation, ANY corporation that
works tirelessly for what is good, right, and true? Maybe the odd NGO or the ODD
non-profit like Vanguard Mutual Funds/ETFs does.
The Boys - McBride, Gates, Jobs, Conrad Black, Enron GANG, and the list goes on
forever; simply don't have the notion of "Right Livelihood" in their
vocabulary!
And there are 1000s waiting in line to be another Gates another Jobs. [ Reply to This | # ]
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- I know one! - Authored by: om1er on Saturday, October 27 2007 @ 11:47 AM EDT
- "Man, if only these people fought so bitterly and tirelessly for what is good, right, and true." - Authored by: Anonymous on Saturday, October 27 2007 @ 12:38 PM EDT
- "Man, if only these people fought so bitterly and tirelessly for what is good, right, and true." - Authored by: Anonymous on Saturday, October 27 2007 @ 04:11 PM EDT
- Maximize Shareholder Value vs. In the Beest Interests of the Owners, a Fiduciary Tale n/t - Authored by: Anonymous on Saturday, October 27 2007 @ 06:50 PM EDT
- "Man, if only these people fought so bitterly and tirelessly for what is good, right, and true." - Authored by: Anonymous on Saturday, October 27 2007 @ 06:52 PM EDT
- "Man, if only these people fought so bitterly and tirelessly for what is good, right, and true." - Authored by: gtall on Sunday, October 28 2007 @ 07:46 AM EDT
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Authored by: DaveJakeman on Saturday, October 27 2007 @ 03:05 AM EDT |
Because Novell was the party that first breached the
APA...
Do I recall SCO failing to respond to Novell's requests for
an audit? Prior to October 2003?
From the Augus
t 10 Ruling:
Novell also seeks the equitable remedy of
accounting under its Ninth Claim for Relief. The APA obligates SCO to give
detailed monthly reports and to comply with audits. APA §§ 1.2(b), (f). To the
extent that SCO has failed to comply with these requirements with respect
to the 2003 Sun and Microsoft Agreements, the court notes that it has a
continuing duty to fulfill its contractual obligations. Novell also has
continuing rights under the APA to conduct audits as to SVRX
Royalties.
And:
On February 25, 2003, SCO
executed an agreement with Sun in which Sun paid SCO approximately $10
million for the right to use, reproduce, prepare derivative works, market,
disclose, make, and sell certain UNIX technology, including source and object
(binary) code.
And:
SCO also executed an agreement
with Microsoft on April 30, 2003, and several amendments to that
agreement over the following three months. Id. Ex. 11, 12 ("2003 Microsfot [sic]
Agreement"). Microsoft paid SCO $16,750,000 for the license rights, a
liability release, and for options to purchase additional licenses. Id. §§ 1,
3.5, 4.1. Under the Agreement, Microsoft received various rights to UNIX System
V technology. SCO agreed to deliver to Microsoft this UNIX System V software in
both binary and source form, which includes the same versions of Unix System V
software that are expressly referenced as SVRX Licenses in the APA.
SCO did
not contact Novell for approval before executing the 2003 Sun Agreement or the
2003 Microsoft Agreement. And Novell did not authorize either agreement. The
agreements gave SCO its first profitable year in history. Id. Ex. 7 at 9. SCO
never remitted to Novell any monies it received from either of the agreements.
Decl. Joseph LaSala at ¶ 4.
On July 11, 2003, when Novell had not
received any royalty reports from SCO for over half a year, it sent SCO a
letter demanding royalty reports and payments as required by the APA. Id.
¶ 6, Ex. 1. In response, on July 17, 2003, SCO submitted limited royalty
payments from November 2002 through May 31, 2003. Id. Ex. 2. These payments
did not mention any royalties from the 2003 Sun or Microsoft Agreements. Id.
¶ 6.
It's all very well getting fancy lawyers to quote the
appropriate case law, but what about the facts? Don't they matter
too?
--- Monopolistic Ignominious Corporation Requiring Office $tandard
Only For Themselves [ Reply to This | # ]
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Authored by: bryhawks on Saturday, October 27 2007 @ 03:06 AM EDT |
Go figure, a verbal agreement that should be taken seriously... This from a
state that allows wire tapping, as long as one party knows about it(that party
doing it)! I wish Utah and SCO would just move to a little island in the
tropics! [ Reply to This | # ]
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Authored by: sproggit on Saturday, October 27 2007 @ 04:19 AM EDT |
As many before have expressed, The SCO Group's willingness to twist and distort
facts and history continues to know no bounds.
But - and IANAL - there is a chance that this latest move could rebound on them
in a big way.
As Dave Jakeman has just observed [2 posts up] The August 10 ruling from the
honorable Judge Dale Kimball expressly found that SCO *did* breach their
fiduciary duty and *are guilty* of conversion.
So surely Novell can file a motion in response to this from SCO and attach the
August 10 ruling as an exhibit?
Then the bankruptcy court would effectively be forced to be aware of the details
and history of legal cases here.
Could that work?
Would the bankruptcy judge be able to use findings from another court as part of
their evaluation criteria for assessing the respective claims between Novell and
SCO?
And perhaps most importantly, can Novell bring in the original APA and try to
show the bankruptcy court that all the SVRX source and binary code (excluding
SCO's 'enhancements') should revert to Novell and be excluded from the
bankruptcy proceedings.
Finally, now that more of the facts are out on the table, can anyone opine as to
whether a bankruptcy court would ever convert a Chapter 11 filing to Chapter 7
once all the facts become known?[ Reply to This | # ]
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Authored by: Anonymous on Saturday, October 27 2007 @ 07:26 AM EDT |
I have to say, this opposition is of a distinctly higher quality than the
laughable whining that BS&F have been churning out. You actually have to
read carefully to see the holes in the arguments.
The legal argument on page
2 (delightfully listed under the "Factual Background" heading) compares the
royalties with equipment leased by the bankrupt debtor. The lessors may not
reclaim the rented equipment because of the bankruptcy; the debtor is still
entitled to possession.
The flaw in the analogy here is that the principal
on the loan of the equipment is secured by the equipment itself. The debtor is
not permitted to sell it for the benefit of other creditors. the problem that
Novell fears is that the royalties are fungible. If they become intermixed with
SCO's other money, then they'll get back pennies on the dollar like all the
other creditors.
If SCO is willing to place the royalties in a segregated
trust account, Novell would have no problems. But wouldn't (Novell asks) the
best segregation be to put it into Novell's account?
The 3Q 2007 payment
argument is good. As is the bit about the contractual due date of the payment.
If SCO says that they agree to give Novell's revenue money priority, then that
undercuts Novell's argument—and throws it to the bankruptcy court to decide the
the priority is correct. Which is right up the bankruptcy judge's
alley.
The "Clean hands" one is interesting. They say that the parties have
not been strictly segregating the funds—and, furthermore, Novell started it—so
it would violate the bankruptcy code to start imposing novel payment rules. I'm
afraid that I don't know the relevant law well enough to really pick this
part.
There are some things I question, but I can't spot too much obvious
nonsense. And a lot of it can be expressed in terms of "unfair to other
creditors", which will make the judge sit up and pay attention. Which means
that the laywers did a good job making their case!
I look forward to seeing
Novell's reply. [ Reply to This | # ]
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Authored by: Stevieboy on Saturday, October 27 2007 @ 08:15 AM EDT |
Have I got this right, guys?
SCO's complaint is that Novell hasn't paid the 5% of the monies that SCO should
have given Novell in the first place - but didn't.
If this correct, then SCO is showing the brassiest of brass necks - even for
them, this is a low move.
Or maybe my understanding is wrong.[ Reply to This | # ]
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Authored by: tz on Saturday, October 27 2007 @ 09:52 AM EDT |
Novell has been after an audit or an accounting of the SVRX royalties about the
same amount of time we've all been asking them to show us any infringing code.
So after stonewalling and not auditing for the longest time, it seems Novell
should have guessed at their 5% fee and submitted it in advance?
I would think Novell should say, OK, let the other trial go, we'll all get the
records, audit them, SCO can then remit the money they are holding (larceny by
conversion) for us, and we will pay the admin fee out of that sum.
The last thing SCO wants is any kind of disclosure or resolution. Like
insurgents, they need not win any major battle, but play the procedural terror
game.
If "Good Will" can be considered an asset, would "Fear,
uncertainty and doubt" also be? It should be worth X million because we
can cloud linux for a few more months...
[ Reply to This | # ]
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Authored by: Anonymous on Saturday, October 27 2007 @ 11:37 AM EDT |
SCO needs to discredit the APA very badly.
The APA says how much SCO has to pay Novell.
The APA says how much control Novell has over things SCO is calling "SCO
assets"
The APA is a barrier to SCO selling off "SCO assets"
SCO needs to discredit and deny the APA as much a possible. The APA is the
primary instrument Novell has for leverage over SCO.
[ Reply to This | # ]
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- Let's see... - Authored by: Anonymous on Saturday, October 27 2007 @ 12:27 PM EDT
- Dead On - Authored by: Anonymous on Saturday, October 27 2007 @ 06:10 PM EDT
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Authored by: Anonymous on Saturday, October 27 2007 @ 08:46 PM EDT |
(apologies to Roy Orbison ;-)
SCO have well primed up their new team: grab an undisputed fact
and brandish it with glee to create smoke and noise. So they have
45 days before they're required to pay up. Seems to me there's
somewhat of a difference between 45 days and never....[ Reply to This | # ]
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Authored by: webster on Sunday, October 28 2007 @ 01:33 AM EDT |
..
1. If one had considered skipping this one, PJ's remarks along with the
comments. made it too curious. Plus it is short. Some say it is good. Some
say check out the new lawyers. PJ says it is low. One has to read for herself
where to come down.
2.0 It starts out entitled Chapter 11 but there were not ten before. They make
a strong start but soon hit a false note: "Nowhere in the Motion does
Novell state (because it cannot) that the Debtors (or their predecessors in
interest) have ever failed to remit the required royalty payments in a timely
fashion in the 12 years since the APA was executed." This would seem to be
easily contradicted by Kimball's findings. This is really going to bring out
this BK as a dodge.
2.1 SCO filed BK because Kimball was going to set an amount and order a trust
or a payment. That would certainly have put SCO into BK. Ironically, now that
they have stopped the Utah suit, they are not really bankrupt. SCO even has a
valuable asset that would keep them afloat according to York, the Stalking
Horse.
2.2 One wonders if York realizes that these assets in SCO hands are reduced.
There are people who shun SCO and customers that leave SCO because of their
suits. York must not mind sharing in this "bad will" since a PIPE
Fairy or two might shove them a few hundred million to manage as consolation.
2.3 Judge Gross should send it back to Kimball to get that number and see if
SCO truly is in BK. While reflecting on the title, one wonders why Novell
doesn't go to the licencees and demand direct payment, or retract the license
from SCO. The licencees would then put the money in trust and ask the Court to
sort it all out.
3. Back to the text. And another false note: "Novell has been litigating
the import of this ambiguous document for almost four years." Well, yes
they have because SCO finds copyrights on a list of "excluded assets"
ambiguous. Well, really they don't; SCO said they were not excluded. Kimball
didn't find it at all ambiguous and he doesn't agree with SCO. They wouldn't be
arguing this way in front of Kimball. At some point lawyers have to accept the
rulings of the court, like them or not, and move on based on that reality.
Kimballs rules until such time as they win an appeal reversing him.
4. The lack of clean hands is trivial. At some point Judge Gross is going to
have to make some calls. He gets to find the facts and choose the law. He can
go either way. All he is really doing is conducting a BK. He doesn't care
about all these other side arguments. He has to protect the debtor and
creditors as the law allows. He isn't going to favor one creditor.
5. This stalking horse round-up is grossly transparent. The Judge will soon
sense that he is just a lesser piece on the board. Someone wants to keep the
SCO FUD alive without consequences to SCO. This convoluted deal could have been
made without or before BK but the need to protect SCO and York assets from
Novell demanded a defense. Suddenly creditors arrived like BSF and their
document farm. How convenient. SCO has a determined patron.
5.1 The SCO assets (Me, SVRX) haven't generated a sustaining business for
years. They won't sustain them or anyone connected to them now. The message to
the world is settle or litigate forever. Their patron's message is "Look
what SCO did with loud claims alone for four years and running. Imagine what
could happen with an arguable patent claim. FUD and lawyers rule." The
SUN and Monopoly licenses in question are suspicious to say the least. That's
another reason for the BK. The trial before Kimball would have sorted this out.
It would become apparent that the licencees didn't get much, didn't use it
much, aren't thriving much. This would be good for SCO figures, They keep more
than 5%. But it shows that it was really a FUD license that generates millions
from a golden stalking horse and PIPE Fairies.
---
webster[ Reply to This | # ]
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Authored by: cmc on Sunday, October 28 2007 @ 01:56 AM EDT |
I have a proposition for SCO. Since they feel the APA is so ambiguous, and they
obviously have no idea how to read it or what it means, I suggest the agree to
nullify the contract. That way, they don't have to worry about the alleged
perceived ambiguity. Of course, that also means all the assets revert to
Novell, including all license and royalty payments, as well as the 5%
administration fee that has been paid since the APA was signed.
I will say one thing, though. In my opinion, the APA *IS* somewhat ambiguous in
one section. Amendment number 2 states the Excluded Assets as "All
copyrights and trademarks, except for the copyrights and trademarks owned by
Novell as of the date of the Agreement required for SCO to exercise its rights
with respect to the acquisition of UNIX and UnixWare technologies." To me,
that is ambiguous. Of course, the fact that there is no formal transfer of any
copyrights and trademarks removes all ambiguity. The bottom line is, that is
what Santa Cruz signed, so that's what TSG has to live by. Santa Cruz never
should have signed it without a detailed list of included assets, but they did.
And it's too late to go back and change it.[ Reply to This | # ]
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Authored by: Anonymous on Sunday, October 28 2007 @ 09:55 AM EDT |
SCO's lawyers wrote "When a company that operates a warehouse commences a
Chapter 11 case, its customers, who hold title to the goods stored there, cannot
demand return of the stored goods when the terms of the underlying storage
contract do not so provide. ".
The problem is that SCO isn't a warehouse. From that perspective, it is
currently selling its customer's goods at the back door with a promise it will
replace them when their delivery is due. Most customers would feel
understandably nervous if they saw an echoingly empty warehouse but
"their" goods still disappearing, some of it to the warehouse owners
and their friends. In that situation, one might expect more than the civil
courts to take an interest.
What is reasonable behaviour for a flourishing business is not necessarily
reasonable for a company having to go cap in hand to pay the light bill.
---------------------
Nigel Whitley[ Reply to This | # ]
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Authored by: Anonymous on Sunday, October 28 2007 @ 02:09 PM EDT |
Here's what I see as a fatal flaw in SCO's argument, one that SCO's lawyers try
to dodge in a slight-of-hand substitution:
In the Response, SCO makes the following statement and footnote:
"The Debtors also do not disagree that the parties to the APA agreed to
denominate the royalties collected by the Debtors as the property of Novell.5
But that being said, these funds were no less the property of Novell from the
day the parties inked the deal. Notwithstanding that the royalties collected by
the Debtors would be property of Novell, Novell contracted to allow that
property to be held by the Debtors until 45 days after the close of the quarter
in which they were collected. Novell now wants the Court to order relief that
Novell never contracted to receive."
So SCO admits that the property, the UNIX royalties, were
-> NEVER the true property of SCO;
-> Novell retained at all times the equitable title.
It follows that:
-> although SCO are "debtors" to other parties, they are not
"debtors" to Novell regarding the royalties because SCO has no legal
claim to possession the royalties;
-> SCO never, ever had equitable title to that money, so that money was never
'conveyed' to SCO's control with a promise to pay it back;
-> it was ALWAYS Novell's money; and SCO's retention of the money was
correctly found by Judge Kimball to be wrongful, in that is was a form of theft,
i.e., CONVERSION.
So what does SCO then argue in footnote 5?
"5 There are good grounds to argue about the efficacy of a pre-petition
contractual term describing cash received by, but not segregated by Party A (the
debtor), for the benefit of Party B (the creditor), as held in "trust"
for the nondebtor party. See, e.g., In re Auto-Train Corp., Inc., 810 F.2d 270,
275 (D.C. Cir. 1987):
In a very limited number of cases involving what would normally be
considered a debtor-creditor relation, courts have found specific funds subject
to a trust in favor of a creditor. In many of these cases the trust is imposed
by virtue of a state statute designed to provide additional protection to
certain types of creditors, usually contractors. See, e. g., Selby v. Ford Motor
Co., 590 F.2d 642, 647 (6th Cir. 1979); Carrier Corp. v. J.E. Schecter Corp.,
347 F.2d 153, 155 (2d Cir. 1965). In cases not involving such a statute, the
courts have uniformly required a contract irrevocably obligating the debtor both
to segregate the "trust funds" from the debtor's own funds and to
deliver the "trust funds" to the creditor. In a footnote, the court
stated that the foregoing analysis "is true irrespective of whether the
analysis is conducted under the rubric of express trust or constructive
trust." Id. at n. 1.
Regardless, the Debtors have been paying -- and plan to continue to pay -- all
ordinary course expenses in the ordinary course, and will not discriminate
against Novell on account of its overzealousness.
BUT (!!!) notice the slight-of-hand! SCO is now posturing that since it is a
debtor, generally, they must also be a 'debtor' with respect to Novell in
determining SCO's rights, and then SCO tries to frame the analysis in explicitly
debtor-creditor terms and by citing debtor-creditor related cases. HOWEVER, SCO
(correctly) admitted, earlier in the Response, that since Novell retained
equitable title to the royalties, then (in effect) SCO is not in a
debtor-creditor relationship with Novell.
So which is it? (And we know which one it is.) If Novell is not a creditor, but
rather, the property owner, and if SCO is not a debtor, but a converter, then
how would SCO's analysis of a "debtor's" rights be relevant? It can't
be. And so the analysis the SCO offers in the footnote MUST be inapplicable,
irrelevant, and denied.
LEXLAW[ Reply to This | # ]
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