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Berger Singerman's 22nd bill in the SCO bankruptcy
Thursday, August 20 2009 @ 12:14 PM EDT

Berger Singerman has filed its 22nd bill in the SCO bankruptcy. $163,159.79. Total now due: $214,063.54.

Frankly, they were worth every penny. I don't admire that style of lawyering, personally, but no fair observer can say they didn't do what they were hired to do. They did. This bill, to me, screams, "What we said at the hearings was true. See? Here's the proof." Exhibit A, the break down, is 29 pages. A lot more detail than usual. Of course, that could be because they know the court has appointed a Chapter 11 trustee to take over from oldSCO management, and the bill has to pass under his nose in all likelihood.

Here's the docket:

08/19/2009 - 896 - Monthly Application for Compensation [Twenty-Second] and Reimbursement of Expenses as Co-Counsel to the Debtors in Possession for the Period from June 1, 2009 Through June 30, 2009 Filed by Berger Singerman, P.A.. Objections due by 9/8/2009. (Attachments: # 1 Notice # 2 Exhibit A # 3 Certificate of Service and Service List) (O'Neill, James) (Entered: 08/19/2009)

And, no offense, but with all the dancing we've seen, I don't take anything I see here in this bill as being precisely anything but PR. Normally, the bills are laconic, but after questions have been raised about the deal(s) and the timing of everything, I see long entries with more detail than usual, and without looking at the original evidence, how would one know if any of this is so? I certainly can't know, so we'll accept them as accurate, unless we notice clear contradictions.

On page 7, you see Arthur Spector attending two board meetings by telephone, one on June 1 and then again on June 11. Remember the testimony about that? On the next page is an entry I don't understand. Perhaps some of you will. It lists a payment of $809 regarding "Meeting of Creditors/Committees." What would that be?

I'll show you an example of a long-winded entry that doesn't seem the usual style. On page 9, for June 2nd, that reads "Confer, Memos, Coordinate regarding Board call, call with deal partner, follow up and discuss issues, etc.; confer, memos regarding disclosure schedules." In the usual style that I think I recall, it'd be more like "conference, memos with client re schedules, PSA" or something equally hard to parse.

But this bill is nothing if not loquacious, chronicling things that were testified to at trial. Here's something interesting, on that same page, for June 4:

Emails regarding new investor/litigation share deal. Draft and revise term sheet and discuss with R. Tibbitts and K. Nielsen's. Review K. Nielsen's input regarding insider/director investment deal term sheet; address distinction between Boies Schiller contingency entitlements and insider returns, relative to fairness to company. Conference with Proskauer and A. Spector Earl term sheet and review revised Earl term sheets. Email comments
See what I mean? No, I have no idea what "Earl term sheet" means or later on that page "Hank deal term sheet" or "insider term sheet". But there is a lot of wording about deals other than the unXis deal, carefully detailing that there were other deals considered. On the face of it, this bill says there were. On the 10th, it begins "Continued work on four alternative transactions..." OK. We get it. Four. Matches the testimony exactly.

Hmm. This is fascinating. On June 7, there is an entry about Xenix:

Review Xenix/Norris issues; email reflecting comments and responses; conference call with P. Antoszyk, team (Proskauer) and A. Spector; follow up with A. Spector; revise memo to employees
I'd certainly love to see those emails. What Xenix issues would require conferences and memos to employees? Perhaps the cure amount SCO listed as being $44,395 allegedly due Microsoft for Xenix code in "old SVRX" in UnixWare and OpenServer? I've never seen an explanation of that figure. But it's moot now, for the moment anyway, as the unXis deal was not approved by the court. Then on the 8th:
Conference calls among SCO team regarding various proposed deals, merits, strengths and negatives. Discuss Gagnon and Xenix/Norris, and proposals regarding director investments. Refine term sheet and discuss securities and organizational issues and methods. Work on designation, work on insert for Xenix APA and discuss with Bryan Cave.
These entries reflect work by FHC, who I assume to be Franklin H. Caplan, the lawyer who testified at the hearing on June 15, if you recall, about what a busy bee he was, juggling all the deals in the air. A lot of the bill is his time. There is mentioned also "GCP and Hank deals" on June 10, followed by a teleconference with Darl re "competing offers". On June 11, it mentions "Ryan and possibly Ryan's and Hank's combination". This is the bill that reflects Caplan's testimony, in other words. Perfectly.

On June 14, it mentions a Bryan Cave draft PSA. I thought the judge seemed a bit hard on unXis about the sales deal in his recent order, since I thought it was a SCO work product. But I guess not. The draft came from Bryan Cave, and then SCO revised. On page 12, Berger Singerman did legal research "regarding asset sales, highest and best offers, and business judgment rule." I wonder if they told the client that on the basis of that research, they were doomed, that the judge would never go for that deal? Even if they did, would SCO listen? But then again, does a law firm have to do what the client wants? Always? Or is there a time when the lawyer's responsibility to the client is to present the likely realities? So much time and money to try to avoid Chapter 7. So, another $163,000 that Novell will never see. SCO is spending Novell's money, as I compute it, to figure out ways to avoid letting them have what is theirs, according to the Utah District Court order.

An item on page 20 indicated a "sixth quarterly fee application" from BSPA. I wonder how Boies Schiller will go down in history, with the gestank of SCO on them forever and ever? The firm is in this up to its eyeballs. On page 27, for example, you see a notation, "Incorporate suggestions from S. Singer into opening." That was prep for the June 15th hearing.

Wait. What's this? On June 29, which is before the disastrous July 27th hearing, there is this notation: "Emails regarding Hank investment. Begin drafting." And on the 30th, "Work on Hank II." Lordy. Not a Hank II. Please. On page 19, it lists "Review correspondence from R. Tibbitts regarding new interest in financing possibilities."

They never give up, these SCOfolk. Absolutely never.


  


Berger Singerman's 22nd bill in the SCO bankruptcy | 210 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off Topic posts hear
Authored by: DannyB on Thursday, August 20 2009 @ 12:17 PM EDT
And include clicky links to save wear and tear on people's starclicking finger.

---
The price of freedom is eternal litigation.

[ Reply to This | # ]

Corrections thread
Authored by: achurch on Thursday, August 20 2009 @ 12:18 PM EDT

Corrections here. Please include the correction in the title:

mitsake --> mistake

[ Reply to This | # ]

They never give up, these SCOfolk
Authored by: DannyB on Thursday, August 20 2009 @ 12:19 PM EDT
PJ wrote...
They never give up, these SCOfolk. Absolutely never.
Utter destruction? Long ago promised. Not quite yet achieved. But close.

---
The price of freedom is eternal litigation.

[ Reply to This | # ]

Berger Singerman's 22nd bill - No, PJ!
Authored by: webster on Thursday, August 20 2009 @ 12:41 PM EDT
..
--------"Frankly, they were worth every penny. I don't admire that style of
lawyering, personally, but no fair observer can say they didn't do what they
were hired to do. They did."-------

All that they have done is dance to the music their slippery clients have played
for them. The almost deals, the suspect deal, the funny money and undisclosed
agent are totally the machinations of the SCOnks. The lawyer just ran at the
mouth with what SCO gave them. They are also supposed to bill away any spare
change so no creditor will see it. Imagine if they had sold that last deal,
though! Everyone should have a lawyer. It makes it appear more respectable
than dealing with them directly.



~webster~

.

[ Reply to This | # ]

Xenix - why?
Authored by: Anonymous on Thursday, August 20 2009 @ 12:46 PM EDT
What is that Xenix entry? Why?

[ Reply to This | # ]

Xenix APA
Authored by: Anonymous on Thursday, August 20 2009 @ 12:52 PM EDT
Perhaps they meant unXis APA and whoever typed it up didn't know how to spell
unXis, and got Xenix stuck in their head?

[ Reply to This | # ]

They want the trustee to approve
Authored by: Anonymous on Thursday, August 20 2009 @ 01:08 PM EDT
That's why all the detail, they think this may well be the LAST SCO bill they
get to submit, they want it approved and quickly too. Remember that the trustee
is likely to be a lawyer.

[ Reply to This | # ]

$809 regarding "Meeting of Creditors/Committees."
Authored by: SpaceLifeForm on Thursday, August 20 2009 @ 01:46 PM EDT
Sounds like an evening at a nice restaurant.


---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

Berger Singerman's 22nd bill in the SCO bankruptcy
Authored by: jjock on Thursday, August 20 2009 @ 01:46 PM EDT
Gee, I wonder how much the 99th bill by Berger Singerman will
amount to? Will they charge till the last penny is sucked up?
This leads me to the unhappy conclusion that no amount of
work by good lawyers can stop or undo the destruction of a
sleazy corporation with underhanded lawyers.
Bob

[ Reply to This | # ]

Only 11 days to Aug. 31
Authored by: Anonymous on Thursday, August 20 2009 @ 02:03 PM EDT

Let's see, it was 35 days when the hearing ended. Now we're down
to 11. Excellent. Right on schedule, just as SCO wanted it. Get the
feeling we've been punk'd?

[ Reply to This | # ]

Most interesting part
Authored by: proceng on Thursday, August 20 2009 @ 03:04 PM EDT
But this bill is nothing if not loquacious, chronicling things that were testified to at trial. Here's something interesting, on that same page, for June 4:
Emails regarding new investor/litigation share deal. Draft and revise term sheet and discuss with R. Tibbitts and K. Nielsen's. Review K. Nielsen's input regarding insider/director investment deal term sheet; address distinction between Boies Schiller contingency entitlements and insider returns, relative to fairness to company. Conference with Proskauer and A. Spector Earl term sheet and review revised Earl term sheets. Email comments
This (as an example) is interesting in that the detail would normally be in the form of:
  • Emails regarding new investor/litigation share deal.
  • Draft and revise term sheet and discuss with R. Tibbitts and K. Nielsen's.
  • Review K. Nielsen's input regarding insider/director investment deal term sheet; address distinction between Boies Schiller contingency entitlements and insider returns, relative to fairness to company.
  • Conference with Proskauer and A. Spector Earl term sheet and review revised Earl term sheets.
  • Email comments
With the time spent on each one, so that billing would be broken out. Otherwise, you run the risk of rolling unallowable time and expenses into those that are appropriate to prosecute the BK (we did not see anything earlier about BS&F contingency entitlements as regards being a secured or priority creditor).

---
And ye shall know the truth, and the truth shall make you free.
John 8:32(King James Version)

[ Reply to This | # ]

News Picks commentary here
Authored by: SpaceLifeForm on Thursday, August 20 2009 @ 04:58 PM EDT
Please note which article you are referencing.


---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

Berger Singerman's 22nd bill in the SCO bankruptcy
Authored by: Anonymous on Thursday, August 20 2009 @ 08:58 PM EDT
So ... who's the trustee?

Has a trustee been appointed yet? I haven't seen it noted on the front page; I

would think it would be.

Amy!

[ Reply to This | # ]

Effectiveness
Authored by: snakebitehurts on Thursday, August 20 2009 @ 10:22 PM EDT
Ther have been some comments on Mr. Spector and his real effectiveness.

He is good. Really good. There have been times I wanted to shout "That's
a boldface lie!" at the BK hearings. Obviously I never did.

IBM and Novell have made some mistakes IMHO.

I have discovered a few things in attending these proceedings.

Most important - if it's not on the record, the judge does not look at it.
Period.

Neither Novell or IBM ever said:

-SCO is claiming ownership of Linux which was written by thousands of people
around the world who are watching. SCO is trying to steal their work.
-We did not initiate the litigation.
-SCO paid $30 million plus to their legal team to take this all the way to the
Supreme Court. We are defending against one of the biggest legal firms on
earth.
-We are defending our good name and reputation. We are not the bad guys.
-SCO lost in Utah because they presented no credible evidence. The Judge said
so on page ......
-This is the equivalent on the 419 Nigerian scam. They have sued people with no
evidence they own anything. "Pay us to settle, or pay in legal fees"
-SCO has freely been a member of the Linux community in that past, has waffled
multiple time on the GPL, and has contributed, and continues to offer pieces of
Linux to their customers.
-They have lied in Court

Mr. Spector has been absolutely masterful in BK court. He is worth the money he
has been paid.

IBM and Novell have been playing the gentlemans' game. There have been moments
of brilliance. Mr. Levin impressed me early on. Mr. Marriott was the best I
have seen. Mr. Lewis tried tried to counteract Mr. Spector's "folksy"
approach. IMHO, Mr Lewis has been completely ineffectual in these proceedings.
He was right. He argued law.

He bored the Judge.

If any parts of the litigation ever get to a jury, I hope IBM and Novell learn
from this. They need to take off the gloves and fight in court (not on paper)
like Mr. Spector has done.

IMHO, they should replace Adam Lewis with a better "folksy" lawyer.
Forget facts. If it gets to a jury, it's going to be "our poor little
company is being attacked by the mega$ companies. All we are trying to do is
protect our <insert 20 minutes of Mr. Spector bull(hockey) here>.

The defense is - "they paid $30 million plus to scam the world"

Spector has won in open court hands down with his style with this judge.

He avoided Chapter 7. He likely got it all delayed until after the Appeals
court rules.

"if you can't dazzle them with brilliance. baffle them with
bull(hockey)"

Mr. Spector has been the master of this.

MikeD












[ Reply to This | # ]

PJ
Authored by: symbolset on Friday, August 21 2009 @ 01:03 AM EDT
Never say never. All things end in time.

[ Reply to This | # ]

  • PJ - Authored by: jmc on Friday, August 21 2009 @ 06:56 AM EDT
Berger Singerman's 22nd bill in the SCO bankruptcy
Authored by: Ian Al on Friday, August 21 2009 @ 05:52 AM EDT
PJ: These entries reflect work by FHC, who I assume to be Franklin H. Caplan, the lawyer who testified at the hearing on June 15, if you recall, about what a busy bee he was, juggling all the deals in the air.
Spector: The Brian Cave folks of GCP... I was shocked that it was signed. That is my viewpoint.
Mr. Spector: When did you first come into the picture?

Mr. Caplan: Roughly the beginning of 2009 on a deal not before the court now. I became involved in this (current) deal approximately 3 to 4 weeks ago. (Mr Caplan explains the deal, mentions a reduced contract that explains precisely what was being sold, what was not being sold. That the big issue was how SCO could do a sale, and still protect and retain its rights regarding the Novell, IBM, etc litigation. That the bucket of assets changed significantly and frequently. What did SCO need to retain to continue Novell/IBM?

...

Mr. Spector: What was Mr. Norris' role?

Mr. Caplan: I'm not certain.

Mr. Spector: Before that (3 or 4 weeks ago), there was no lawyer for the buyer?

Mr. Caplan: No. We met a month ago when a law firm on the other side, Brian Cave, became involved.

Mr. Caplan went on to explain his work on this deal. He mention that there were many elaborate discovery statements, and that Alan S. Pearce worked on it.

Mr. Spector: What were you doing about noon today?

Mr. Caplan: I was in Philadelphia to close the purchase/sale agreement.

Trustee: It is signed by Steven Norris of SNCP. This is not new. Negotiations have been going on or off for 16 months. It is a dynamic process. This court should enforce deadlines.
The Bill:

6/1/2009

AJS

CONFERENCE CALL WITH PURCHASER AND ITS COUNSEL, SCO CLIENT REPRESENTATIVES AND D. LAMPERT AND F. CAPLAN

Through most of this time, Unxis was being created and had few, if any, active officers. In fact, 'they' were still trying to appoint officers. So, who was shaping the deal for Unxis? Who knew enough about SCOG business and litigation to be able to work with Caplan? Who signed the sale agreement? Yet, Caplan is unsure of Stephen Norris' role in the deal. Spector said 'The Brian Cave folks of GCP... I was shocked that it was signed. That is my viewpoint.' So, in spite of his conferences, he was not fully aware of what Stephen Norris was doing.

If I could spell 'complicit' I would have much more to say about Spector's and Caplan's roles and protestations of innocence, but I can't, so I won't.

---
Regards
Ian Al

Linux: Viri can't hear you in free space.

[ Reply to This | # ]

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