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BK Update -- IBM Objects -- Updated - So Does Novell
Wednesday, February 18 2009 @ 06:03 PM EST

Latest filings from the BK docket, showing some objections from IBM. Update: Novell has also filed objections, and there's an application for compensation from Berger Singerman.

- The Groklaw Team



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

02/18/2009 702 Objection /IBMs Objection To Debtors Motion for an Order (I) (A) Establishing Sale and Bid Procedures, (B) Approving Form of Asset Purchase Agreement, and (C) Approving the Form and Manner of Notice of Sale; and (II) Approving (A) Sale of Certain Assets Free and Clear of Interests and (B) Assumption and Assignment of Executory Contracts and Unexpired Leases (related document(s) 695 ) Filed by IBM Corp. (Attachments: # 1 Certificate of Service) (MacConaill, Gabriel) (Entered: 02/18/2009)

02/18/2009 703 Objection of International Business Machines Corporation to Debtors Motion to Approve Disclosure Statement (related document(s) 655 , 662 , 694 ) Filed by IBM Corp. (Attachments: # 1 Certificate of Service) (MacConaill, Gabriel) (Entered: 02/18/2009)

02/18/2009 704 Objection to the Debtors' Proposed Amended Disclosure Statement (related document(s) 655 ) Filed by Novell, Inc. (Attachments: # 1 Exhibit A) (Greecher, Sean) (Entered: 02/18/2009)

02/18/2009 705 Objection to the Debtors' Revised Motion for an Order (I) Scheduling Confirmation Hearing; (II) Approving Form and Contents of Solicitation Package; (III) Approving Form and Manner of Notice of Confirmation Hearing; (IV) Establishing Record Date and Approving Procedures for Distribution of Solicitation Packages; (V) Approving Forms of Ballot; (VI) Establishing Voting Deadline for Receipt of Ballots; (VII) Approving Procedures for Vote Tabulations; (VIII) Establishing Deadline and Procedures for Filing Objections to Confirmation of the Plan; and (IX) Granting Related Relief [Related Docket No. 662] (related document(s) 694 ) Filed by Novell, Inc. (Greecher, Sean) (Entered: 02/18/2009)

02/18/2009 706 Objection to Debtors' Motion for an Order (I) (A) Establishing Sale and Bid Procedures, (B) Approving Form of Asset Purchase Agreement, and (C) Approving the Form and Manner of Notice of Sale; and (II) Approving (A) Sale of Certain Assets Free and Clear of Interests and (B) Assumption and Assignment of Executory Contracts and Unexpired Leases (related document(s) 695 ) Filed by Novell, Inc. (Greecher, Sean) (Entered: 02/18/2009)

02/18/2009 707 Interim Application for Compensation (Seventeenth) for Services and Reimbursement of Expenses, as Co-Counsel to the Debtors in Possession for the Period from January 1, 2009 through January 31, 2009. Filed by Berger Singerman, P.A.. Objections due by 3/10/2009. (Attachments: # 1 Notice # 2 Exhibit A # 3 Certificate of Service and Service List) (Makowski, Kathleen) (Entered: 02/18/2009)


  


BK Update -- IBM Objects -- Updated - So Does Novell | 27 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: atheist on Wednesday, February 18 2009 @ 06:07 PM EST
should any be needed.

[ Reply to This | # ]

Newspicks Discussion Here
Authored by: red floyd on Wednesday, February 18 2009 @ 06:15 PM EST
Please state the title of the newspick as your title.

---
I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United
States of America.

[ Reply to This | # ]

Off Topic Here
Authored by: red floyd on Wednesday, February 18 2009 @ 06:17 PM EST
On Topic Posters must answer the questions from 702's Preliminary Statement,
Paragraph 1.


---
I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United
States of America.

[ Reply to This | # ]

BK Update -- IBM Objects: "...inadequately described and misleading..."
Authored by: webster on Wednesday, February 18 2009 @ 09:14 PM EST

What a treat! Is this the first IBM filing in the bankruptcy? It will have spectacular impact. Spector will have to soft-shoe in mountain climbing boots around this stuff. Worse for SCO, the trustee and creditors can now all object orally and join in IBM's Motion. They don't have to work.

IBM objects to everything. The sale, its timing, the description of what is to be sold, and the process. They even call part of the SCO proposal "misleading." IBM Objection p. 2. [Obj. 2].

IBM asks several questions in their preliminary statement that tease our interest and challenge SCO:

  1. i. What is the urgency? Why this hasty formalized bidding process when they are not now entertaining bids for the mysterious assets? Are they making efforts to sell it now? Why is this procedure necessary? The answer to this question might expose the true value, or lack thereof, and expose this whole "stalking-horse" process as a scheme. IBM pounds on them about the supposed urgency of the sale: "...The Debtors describe the assets as expected to generate value going forward, which is at odds with the haste with which the Debtors are seeking to divest themselves of the Assets." Obj. 8.
  2. ii. What are the assets to be sold? Who is worse for SCO to ask this question than IBM who went through the discovery wars with SCO, the battles at the Stone Wall? The operative and nasty word here is "specificity." And that is going to have to be "specificity" consistent with Judge Kimball's decisions, file and line. That may be a game-stopper right there. IBM reveals the description of assets to be jumbled as to content and owner. They point out the SCO corporate shell game where SCO slips in SCO Global, Inc., not party to the bankruptcy. They also chew on Me, Inc. And what is Hipcheck, by the way? They attack them for not providing for due diligence in the process and maintaining the confidentiality of property subject to the "Retained Litigation" and adverse claims. Obj. 11. IBM opens the can of worms. SCO skims over the fact that some of the assets are in part owned by subsidiaries not in bankruptcy. IBM asks who owns what, who gets what, who pays what.
  3. iii. Why this "stalking-horse" procedure? It is more expensive and depletes assets, it favors one bidder and discourages other bidders, and it is not proven that it is necessary. Indeed, why would a stalking horse bidder go for this if they could have it cheaper in a simple sale? If they have a bidder, put the bid out there and let others bid more. IBM might at least prod the judge to inquire. IBM attacks the Stalking Horse. Who is he? What is the criteria? Why do they provide for more than one Stalking Horse Bidder? Obj. 12. Citing authority IBM attacks the bidder protections by noting that "...the requesting party must show that the protections are 'necessary to preserve the value of the estate.' In re O'Brien." Obj.13.

IBM raises some reasonable questions. How pesky. IBM is going to nag SCO. They sniff a conniving Stalking Horse. A good question is did IBM write this after discussions failed, or did they just file it for effect. SCO will probably withdraw their motion. They wouldn't want a blunt hearing on these matters. The judge might ask some questions and the lawyers can only dodge, not lie.

---------webster

Tyrants live their delusions. Beware. Deal with the PIPE Fairy and you will sell your soul.



[ Reply to This | # ]

IBM misunderstands the presentation of the plan.
Authored by: PTrenholme on Wednesday, February 18 2009 @ 11:19 PM EST

I must admit to just skimming the objection supporting memo, but it reads as though IBM's law firm read the "reorganization plan" as though the document was a serious plan when it is, as was obvious when it was first presented, nothing more than an introductory sales presentation replete with typical "market speak" and "buzz words" designed to "convince" and "reassure" the "mark."

(I wonder if the "plan" was written by Darl, eh?)

---
IANAL, just a retired statistician

[ Reply to This | # ]

Anyone Planning to Attend?
Authored by: Steve Martin on Thursday, February 19 2009 @ 05:46 AM EST

The hearing date on the above motions etc. is this coming Wednesday in Delaware. Anyone planning to attend?

---
"When I say something, I put my name next to it." -- Isaac Jaffe, "Sports Night"

[ Reply to This | # ]

OCR?
Authored by: Steve Martin on Thursday, February 19 2009 @ 09:29 AM EST
Can anyone OCR any of these docs? If so, I'll volunteer to HTML them.

(Don't bother with 702, I just finished it, it's submitted to PJ.)


---
"When I say something, I put my name next to it." -- Isaac Jaffe, "Sports Night"

[ Reply to This | # ]

BK Update -- IBM Objects -- Updated - So Does Novell
Authored by: turambar386 on Thursday, February 19 2009 @ 10:00 AM EST
yes, this is all good stuff. my favourite is on page 26 of 703 where IBM
objects to SCO's assertion that it has been an "important industry
player" for 30 years.

they really went all out on this effort.

[ Reply to This | # ]

BK Update -- IBM Objects -- Updated - So Does Novell
Authored by: Gringo on Thursday, February 19 2009 @ 12:00 PM EST
I read both IBM and Novel's responses, and of course they
confirm what our first impressions were - specifically,
that
SCO's proposal is a bunch of hog wash. Shouldn't SCO be
sanctioned by the court for wasting everybody's time with
this garbage? This is a repeat of the proposed asset sale
way
back when, that was outrageously flawed as well. Isn't it a
serious insult to the Court to bring forth another plan of
a
similar nature? How much time did Novel and IBM have to
waste
- in terms of dollars - to respond to this nonsense? ...and
the court has to spend time and resources not only to read
SCO's nonsense, but now the responses to it - while the
clock
is running out on SCO's time to remain debtor in
possession.
SCO are clearly nothing but a bunch of scallywags. What
kind
of respect for the Law does this show? Does not the
Bankrupt
Court have an imperative to demand respect? (yes I know it
is
normally spelled "Bankruptcy Court", but I am beginning to
wonder...)

Insufficient time remains for them to come up with anything
other then more horse manure. They are clearly not acting
in
good faith. This calls for an immediate pronouncement by
the Bk Court, who should appoint an officer to dissolve SCO
without delay.

(hog wash, garbage, scallywags, nonsense, horse manure -
please excuse my language. As I am unable to use common
terms
here in this forum that I would normally employ, I am left
with words that only hint at the depth of my contempt for
these people.)

[ Reply to This | # ]

Elephant in the Room
Authored by: DaveJakeman on Thursday, February 19 2009 @ 12:47 PM EST
Never mind those stalking horses in the corner, what about this here elephant on
the table?

What's wrong with this is that SCO are trying to do Chapter 7, whilst staying in
Chapter 11. It's mightily obfuscated, but that's what it boils down to.

---
Monopolistic Ignominious Corporation Requiring Office $tandard Only For
Themselves

[ Reply to This | # ]

Puttin' it how it is
Authored by: DaveJakeman on Thursday, February 19 2009 @ 01:13 PM EST

703; Background Facts; A; 3:

In early 2003, SCO attempted to profit from the increasing popularity of the Linux operating system by, among other things, embarking on a far-reaching publicity campaign to create the false and unsubstantiated impression that SCO had rights to the Linux operating system that it does not have and by bringing baseless legal claims against IBM, Novell, Inc. ("Novell") and others.
It's good to see IBM back in the fray.

:D

---
Monopolistic Ignominious Corporation Requiring Office $tandard Only For Themselves

[ Reply to This | # ]

704
Authored by: DaveJakeman on Thursday, February 19 2009 @ 03:52 PM EST

In 704, Novell leave IBM to do the nit picking and get down to basics. They reveal new lows of SCOduggery previously untapped.

This substitution of a “trust us” standard for an objective and intelligible one is the very epitome of inadequate information.
Facing the expiration of their exclusivity rights for plan confirmation after languishing in chapter 11 for nearly 1 1/2 years, the Debtors’ overriding concern remains control of the Pending Litigation for as long as possible in the hope it will prove to be a windfall. The Amended Plan has been cobbled together to serve this purpose. The Amended Disclosure Statement has been compiled accordingly. It is filled with material that either simply tracks the Amended Plan or is pro forma that is “disclosure” in name only. For the reasons stated above, the Amended Disclosure Statement is inadequate and should be rejected.
Scintillating reading.

---
Monopolistic Ignominious Corporation Requiring Office $tandard Only For Themselves

[ Reply to This | # ]

706
Authored by: DaveJakeman on Thursday, February 19 2009 @ 04:23 PM EST
It has been said here that legal manoeuvres in court are akin to a game of
chess. In 706, Novell illustrate that perfectly by exposing SCO's devious
plans, looking several moves ahead.

---
Monopolistic Ignominious Corporation Requiring Office $tandard Only For
Themselves

[ Reply to This | # ]

703 - # 17, point 5 - that's beautiful
Authored by: Hyrion on Friday, February 20 2009 @ 08:31 PM EST

(5) a complete and accurate description and valuation of the Debtor's assets
SCOG refused to tell IBM what "SCOG intellectual property" IBM has "infringed". It sure looks like IBM is going to get that description with specificity sooner or later ;)

---
IANAL - But I am very curious and like to research.
There are many kinds of dreams. All can be reached if a person chooses.
RAS

[ Reply to This | # ]

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