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Another Lawyer Moves On & a SCO/Novell Status Chart from August |
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Wednesday, December 12 2007 @ 02:55 AM EST
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Tomorrow is the deadline for the parties in SCO v. Novell to file their joint statement in Utah, informing the judge of what they think the effects are of the bankruptcy lift stay order. And I gather, in reviewing the file, someone on the Novell side noticed that one lawyer who worked on the case back in 2004 isn't involved now, so there is a motion to withdraw John Mullen, one of the Anderson & Karrenberg attorneys:
474 -
Filed & Entered: 12/11/2007
Motion to Withdraw as Attorney
Docket Text: MOTION to Withdraw as Attorney filed by Defendant Novell, Inc.. (Attachments: # (1) Text of Proposed Order) Motions referred to Brooke C. Wells.(Mullen, John)
475
Filed & Entered: 12/11/2007
Memorandum in Support of Motion
Docket Text: MEMORANDUM in Support re [474] MOTION to Withdraw as Attorney filed by Defendant Novell, Inc.. (Mullen, John) The firm is still representing Novell, of course,
as are all the Morrison & Foerster warriors.
[Update: The Order [PDF] has now been signed, as of the 12th.]
We first saw Mr. Mullen's name on a filing in 2004, listed as one of the Anderson & Karrenberg attorneys representing Novell. He was in attendance at the May 2004 hearing on a couple of motions in SCO v. Novell but Michael Jacobs of Morrison & Foerster did the talking that day for Novell. I gather his role was behind the scenes. The motion says that he is now of counsel and that he isn't currently doing any work on this case. So that's all this means. Just tidying up the file.
This case has gone on for so many years, we could have a page for announcements. You know, marriages, births, divorces, retirements, various life events. We could call it the SCO Follies. No, wait. That's taken. But in all seriousness, it is a little like a family after all this time, and it always feels funny when one of the lawyers moves on, as has happened a few times now since it all began. Doesn't Mr. Mullen have a great face? Still, life moves on, so we'll say goodbye to him and wish him well. I'll go put a line through his name on Groklaw's Cast of Characters page now. Groklaw's still here. Can you believe it? It's almost 2008, and we're still ticking. Who'd ever have imagined in 2003 that we'd still be together after all these years? And you know what? It's still so much fun. I've been reviewing the SCO v. Novell filings too, so I can be ready to roll when the trial begins. I thought you might like to be reminded of the last time the Utah lovebirds filed a joint statement. It was in August, and Judge Dale Kimball asked the parties to file a statement letting him know what they thought was left in the case to go to trial after his August 10th Memorandum Decision and Order. Of course, they didn't agree. But here is what they were able to file together at least. I would guess they are using this now as a template and then analyzing what, if anything, gets removed from the list, since the Bankruptcy Court in Delaware will be handling the post-trial issue of a constructive trust. Right after they filed the joint report, Groklaw's feldegast did a chart for us, but then we all danced over to Delaware, and so I never ran it. Now's the time, I'd say, because it will help us a lot to understand whatever the new joint statement lists. If you go to the Novell Timeline page, you'll see a lot happened between the day this status report was filed, on August 29, and the day SCO hopped like a bunny over to Delaware and filed for Chapter 11 bankruptcy protection on September 14th. The parties fought about jury instructions, over what evidence each could present at trial, who could testify, whether SCO could invent new arguments regarding SCOsource licenses, and SCO filed a motion for reconsideration or clarification of the August 10th order, which was for naught. It was denied with the memorable phrase, "no clarification is necessary". The court said that SCO's motions and briefs made clear they understood him perfectly. SCO wanted Groklaw to be unmentionable before the jury. But then the court decided there would be no jury anyhow, at which point, the handwriting was on the wall and SCO ran screaming for bankruptcy protection. But the chart, despite all that happened, still reflects the overview of what the parties thought remained for trial, a trial SCO managed to postpone but not escape.
* * *
SCO's Claims for Relief |
Claim |
Decided |
For Trial/Pending |
SCO's Slander of Title |
All |
None |
SCO's Breach of the APA and TLA |
The parties agree this claim is dismissed to the extent it concerns the UNIX and UnixWare copyrights the Court has held were retained by Novell, and to the extent it concerns Novell's waiver of claims asserted against IBM and Sequent. |
The parties agree that the Court did not dismiss any alleged portion of the claim concerning technology other than the UNIX and UnixWare copyrights the Court has held were retained by Novell. The parties disagree as to whether SCO has pled or can pursue such a claim, but agree that any such portion is stayed by the Court's August 21, 2006 Order pending resolution of the SuSE arbitration. No aspect of this claim will be tried during the September 2007 trial. |
SCO's Alternative Breach-of-Contract Claim Seeking Specific Performance |
The parties agree this claim is dismissed in its entirety. |
None |
SCO's Copyright Infringement Claim |
The parties agree that this claim is stayed by the Court's August 21, 2006 Order pending resolution of the SuSE arbitration. |
Stayed pending resolution of the SuSE arbitration. |
SCO's Unfair Competition |
The parties agree this claim is dismissed to the extent it concerns the UNIX and UnixWare copyrights the Court has held were retained by Novell, and to
the extent it concerns Novell's waiver of claims asserted against IBM (including Sequent). The parties agree that the Court did not dismiss any alleged portion of the claim concerning technology other than the UNIX and UnixWare copyrights the Court has held were retained by Novell. The parties disagree as to whether SCO has pled or can pursue such a claim, but agree that any such portion is stayed by the Court's August 21, 2006 Order pending resolution of the SuSE arbitration. No aspect of this claim will be tried during the September 2007 trial. |
No aspect of this claim will be tried during the September 2007 trial. |
So that's what is left of SCO's claims after the August 10th ruling. Not so much. Here's what the parties thought remained of Novell's claims to be tried:
Novell's Claims for Relief |
Claim |
Decided |
For Trial/Pending |
Novell's Slander of Title |
The parties agree that Novell shall dismiss this claim without prejudice to renewing it should there be any subsequent adjudication or trial of copyright ownership-related issues. The parties will incorporate this agreement into the proposed final judgment. |
Claim can be renewed. |
Novell's Breach of Contract - §§ 1.2(b) and 1.2(f) of the Asset Purchase Agreement |
None |
Novell presently intends to pursue this claim at trial. SCO reserves the right to argue this Count is resolved by the Court's ruling. |
Novell's Breach of Contract - §§ 1.2(b) and 4.16(a) of the Asset Purchase Agreement |
The parties agree that the Court's Order finds SCO liable for breach of the APA as to the Sun and Microsoft licenses, leaving only the proper apportionment of the Sun and Microsoft royalties for trial. Novell also contended that SCO breached the APA by failing to remit certain miscellaneous SVRX Royalties over the history of SCO's administration of SVRX licenses. As these royalties constitute only a small portion of the recovery sought and as seeking these royalties would add considerably to the complexity of the trial, Novell does not intend to pursue, under any claim, the royalties reflected on Exhibits 6, 7, and 8 of Terry Musika's Supplemental Expert Report on Damages or the associated prejudgment interest.
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The proper apportionment of the Sun and Microsoft royalties, and SCO reserves the right to argue by motion that to the extent SCO licensed SVRX only incidentally to a UnixWare license in the Sun and Microsoft licenses (or any other licenses), SCO did not breach the APA and Novell is not entitled to any apportionment of the Sun and Microsoft royalties (or royalties from other licenses). Novell believes that such an argument is foreclosed by the Court's Order. The trial will also address whether SCO breached the APA by
failing to remit SVRX Royalties from SCO's remaining SCOsource licenses and the amount of those royalties that should be apportioned to Novell. |
Novell's Declaratory Relief - Rights and Duties Under § 4.16(b) of the Asset Purchase Agreement, § B of Amendment No. 2 |
The parties agree that the Court's Order establishes that Novell is entitled to direct SCO to waive claims against IBM, Sequent, and other SVRX licensees; that Novell is entitled to waive such claims on SCO's behalf; and that SCO is obligated to recognize such a waiver. |
Novell will seek a declaration that SCO was also obligated to seek Novell's approval prior to entering into new SVRX licenses or amendments to SVRX licenses and that SCO therefore had no authority to enter into the Microsoft, Sun, and other SCOsource licenses.
Novell will seek a declaration that SCO was also obligated to seek Novell's approval prior to entering into new SVRX licenses or amendments to SVRX licenses and that SCO therefore had no authority to enter into the Microsoft, Sun, and other SCOsource licenses. SCO reserves the right to argue by motion that to the extent SCO licensed SVRX only incidentally to UnixWare in the Sun and Microsoft licenses (or any other licenses), SCO was not obligated to seek Novell's approval prior to entering into any such licenses. Novell believes that such an argument is foreclosed by the Court's Order. |
Novell's Declaratory Relief - Rights and Obligations Under APA's Covenant of Good Faith and Fair Dealing |
None |
Novell intends to pursue this claim at trial. SCO reserves the right to argue this Count is moot in light of the Court's ruling. |
Novell's Constructive Trust/Restitution/Unjust Enrichment |
Novell contends that the Court's Order resolves any question as to SCO's liability for unjust enrichment as to the Sun and Microsoft licenses, leaving only the proper apportionment of the Sun and Microsoft royalties for trial. |
SCO reserves the right to argue by motion that to the extent SCO licensed SVRX only incidentally to UnixWare in the Sun and Microsoft licenses (or any other licenses), SCO did not breach the APA and Novell is not entitled to any apportionment of the Sun and Microsoft
royalties (or royalties for any other licenses). Novell believes that such an argument is foreclosed by the Court's Order. The trial will also address whether SCO unjustly enriched itself by retaining SVRX Royalties from SCO's remaining SCOsource licenses and the amount of those royalties that should be apportioned to Novell. |
Novell's Breach of Fiduciary Duty |
Novell contends that the Court's Order resolves any question as to SCO's liability for its breach of fiduciary duties as to the Sun and Microsoft licenses... |
... leaving only the proper apportionment of the Sun and Microsoft royalties for trial. SCO reserves the right to argue by motion that to the extent SCO licensed SVRX only incidentally to UnixWare in the Sun and Microsoft licenses (or any other licenses), SCO did not breach the APA and Novell is not entitled to any apportionment of the Sun and Microsoft royalties (or royalties from any other licenses). Novell believes that such an argument is foreclosed by the Court's Order. The trial will also address: whether SCO breached its fiduciary duties by retaining SVRX Royalties from SCO's remaining SCOsource licenses; the amount of those royalties that should be apportioned to Novell; whether SCO breached its fiduciary duty by failing to comply with the audit provisions of the APA; and whether that breach is a further reason why any questions as to royalty apportionment should be decided against SCO. SCO reserves the right to argue that these issues are moot by the Court's ruling, that the only issues to be tried should be the apportionment of royalties between SVRX royalties and non-SVRX royalties, including whether the SVRX aspect of licenses are incidental to SCO's licensing of UnixWare such that no royalties are due at all. |
Novell's Conversion Claim |
Novell contends that the Court's Order resolves any question as to SCO's liability for its conversion of Sun and Microsoft license royalties.... |
...leaving only the proper apportionment of the Sun and Microsoft royalties for trial. SCO reserves the right to argue by motion that to the extent SCO licensed SVRX only incidentally to Novell in the Sun and Microsoft licenses (or any other licenses), SCO did not breach the APA and Novell is not entitled to any apportionment of the Sun and Microsoft royalties (or royalties for any other licenses). Novell believes that such an argument is foreclosed by the Court's Order. The trial will also address whether SCO converted SVRX Royalties from SCO's remaining SCOsource licenses and the amount of those royalties that should be apportioned to Novell.
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Novell's Accounting Claim |
The parties agree that the Court's Order moots this claim. No aspect of this claim will be tried during the parties' September 2007 trial.
Further, the parties have agreed that Novell will not pursue punitive damages under any claim, without prejudice to seeking such relief should there be any subsequent adjudication or trial in this action or any enlargement of the issues for this trial beyond that contemplated by this report. The parties will incorporate this agreement into the proposed final judgment. |
None at this time |
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Authored by: SirHumphrey on Wednesday, December 12 2007 @ 02:57 AM EST |
If needed.
[ Reply to This | # ]
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Authored by: SirHumphrey on Wednesday, December 12 2007 @ 03:00 AM EST |
For anything not strictly about this. Please use clickys if you have them. Use
"HTML Formatted" option if so, and follow the advice in red letters -
<a href="http://www.example.com/">Like this</a>[ Reply to This | # ]
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Authored by: SirHumphrey on Wednesday, December 12 2007 @ 03:02 AM EST |
About items from the Right hand side column. Please include the topic title. [ Reply to This | # ]
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Authored by: Anonymous on Wednesday, December 12 2007 @ 06:44 AM EST |
So the case can end up before Judge Kimball even one more time after the SuSE
arbitration is done to handle the SCO's Breach of the APA and TLA and SCO's
Copyright Infringement Claim if the arbitration does not resolve everything.
And that won't happen until the bankruptcy is done.
That judge must be getting very tired of this.[ Reply to This | # ]
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Authored by: KC on Wednesday, December 12 2007 @ 07:00 AM EST |
I note that one item in the list of things yet to be resolved is SCO's Copyright
Infringement Claim:
"The parties agree that this claim is stayed by the Court's August 21, 2006
Order pending resolution of the SuSE arbitration."
Since the Bankruptcy Court has decided the SCOG vs. Novell Court Proceeding
should be resolved, would there be any chance that this would also be allowed to
proceed - or is this going to be held in abayence?
---
KC[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, December 12 2007 @ 08:14 AM EST |
I know that Kudge Kimball asked SCO and Novell to file a joint brief on whether
anything has changed with regard to what needs to be covered in the trial and
how long it would take, but I don't see that anything has changed.
Judge Gross did not lift the stay with regards to a constructive trust, but
Novell had already said that they were going to wait until after the trial to
submit a motion for the constructive trust, so Judge Gross' ruling on this
doesn't change the Utah trial itself. There is nothing else that is different
that I can see, since the only things that were still left for decision at the
trial are still there, and nothing new has been added and nothing taken away.
The only way that I can foresee a shorter trial estimate is if either party
decides to agree with the others viewpoint on any of the outstanding claims, but
I don't think that this idea has much of a chance in the real world. SCO and
their lawyers cannot concede anything at this point without leaving themselves
open for sanctions, and Novell won't budge on any of the outstanding issue.
There is one small chance at a shorter trial, if Novell makes a motion prior to
the beginning of the trial asking the judge to order SCO not to make any of
their silly arguments about the SVRX licenses being "incidental to
UNIXWare", and Judge Kimball actually agrees with Novell and orders that
SCO are not allowed to make those arguments, but that would probably leave more
of an opening for an appeal, and I know that the judge doesn't want that, so he
probably will allow SCO to make those arguments again, but then decide against
them anyway. [ Reply to This | # ]
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- Has anything changed? - Authored by: Anonymous on Wednesday, December 12 2007 @ 09:53 AM EST
- Yes - Authored by: mikeprotts on Wednesday, December 12 2007 @ 05:44 PM EST
- Not quite - Authored by: Anonymous on Wednesday, December 12 2007 @ 07:15 PM EST
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Authored by: JamesK on Wednesday, December 12 2007 @ 11:26 AM EST |
"This case has gone on for so many years, we could have a page for
announcements. You know, marriages, births, divorces, retirements, various life
events."
Perhaps, one of those one of those births could turn out to be a future lawyer
working on this case and maybe cover their retirement too! ;-)
---
May the source be with you.
[ Reply to This | # ]
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Authored by: Steve Martin on Wednesday, December 12 2007 @ 07:59 PM EST |
Just for the record, I just checked PACER for anything new, Kimball signed
off on Mullen's departure. Docket 476:
ORDER granting 474 Motion to
Withdraw as Attorney. Attorney John P. Mullen withdrawn from case for Novell,
Inc.. Signed by Judge Dale A. Kimball on 12/12/07. (jwt) (Entered:
12/12/2007)
--- "When I say something, I put my name
next to it." -- Isaac Jaffee, "Sports Night" [ Reply to This | # ]
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Authored by: webster on Thursday, December 13 2007 @ 12:59 AM EST |
..
1. There is nothing good in Utah for SCO. They ought to leave town and head
for the mountains. Kimball has already decided who owns what. The trial is all
about an evaluation, a price tag, for SCO. How much do they owe Novell? That
is the only issue.
2. They and their backers have much to fear from trying to answer that
question. They ought to tell the truth and say they don't owe Novell anything.
The licenses were a sham and excuse just to raise FUD funds. What does SUN need
UNIX for? The Monopoly? What will they say? What did they do with the stuff?
Does it match stuff they already have rights to? Did they resell the stuff?
How much did it generate? Who uses it for what? What besides UNIX went with
these licenses to justify the sums involved? Why didn't others buy these gems?
Will they corroborate each other? What impact will the answers to these
questions have on the IBM suit? No, nothing good can come from a trial.
3. Kimball has seen the documents. SCO owes for SVRX licensed to SUN and the
Monopoly. SCO's position is that they don't owe anything. They have
stonewalled and maintained this position. They will allowed to defend with
alternative positions, but their credibility will suffer. They are not going to
snooker Kimball at this point. Any substantial damage is enough to bankrupt
them more specifically, xxx pints of red. They will go back to Delaware with a
specified sum with Novell as the most prominent among creditors. This will be
the log that breaks the camel's back. SCO's has already lost. They should shut
up and not make it worse.
4. If the sum is not too devastating, York, the stalking horse, can drag them
away from chapter 7 and stave off complete loss of control. They will probably
try and keep IBM and the arbitration stayed while they fry and appeal Novell for
no other reason than to extend the FUD. That's their goal and why Darl M.
recently attacked the decision in some friendly press and promised the appeal.
They will needs breaks on the appeal bond from the Court of Appeals and the
Delaware court. This is more trouble. SCO can't control themselves anymore.
When things are laid out in front of the Judges, they decide against SCO. SCO
screams for their day in court, ...well, they have had it. Both judges like the
110 page August decision. The Novell-Santa Cruz contracts simply do not say
what SCO says. And SCO does not have any relevant witnesses to contradict the
meaning and intent of that sale. Summary Judgment, no jury. It is over.
5. SCO concluded that bankruptcy in Delaware was better than going to trial in
Utah. They were right. Trial is still too dangerous. They shouldn't spill
their beans fighting over more than they can lose. Everything they say can be
used against them should some hostile parties choose to chase them and others
beyond bankruptcy. They have circled their wagons. Their hopes, that the
horseman will just ride away, or that the PIPE Fairy will ride in to rescue, may
be too much.
---
webster[ Reply to This | # ]
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