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Novell Objects to SCO's Notice of Cure Amounts. It's Déjà Vu All Over Again. |
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Tuesday, October 26 2010 @ 01:02 AM EDT
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Our third objection is in to SCO's Notice of Cure Amounts, and it's the one you expected all along, from Novell.
Like
EMC and then Oracle,
Novell says it can't figure out what SCO is proposing to do either, so it objects on these grounds:
Novell objects to the Notice and proposed assumptions and assignments on at least the following
grounds: (1) as to certain items, the Notice is so cryptic as to make it impossible to determine to
what agreements the Trustee is referring; (2) as to the cure amounts, because the Trustee and
Debtors have not provided the information that only they can and that they are required to supply
regarding certain of the contracts at issue (the “SVRX Licenses”), Novell cannot at this time
verify the sums in the Notice, and in any event the Trustee must cure other monetary defaults
that he does not even mention in the Notice; (3) as to the Trustee’s intent generally, the Trustee
cannot assume and assign any of the Debtors’ agreements with Novell without assuming and assigning all of them, something the Trustee does not attempt to do; and finally, (4) as to some of
the agreements the Trustee wishes to assume and assign, he must obtain, but cannot get, Novell’s
consent, and more generally, based upon (3) above, he must get, but cannot obtain, Novell’s
consent to be able to assume all of the Novell agreements he must assume if he is to be able to
assume any. So there you are. A perfect loop. In short, Novell moves to block. It doesn't consent to this going forward, and it's Novell's view that SCO must get its consent, which it won't give. And just in case the court forgot, Novell reminds it that SCO needs its consent to assign the APA:15. Finally, and of the utmost importance, APA Section 9.5(c) expressly prohibits its
assignment by SCO without Novell’s consent. So, no funny business, please, your honor.
Here are the filings:
10/25/2010 - 1191 - Objection of Novell, Inc. To Notice of Cure Amounts (related document(s) 1184 ) Filed by Novell, Inc., SUSE Linux GmbH (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit) (Greecher, Sean) (Entered: 10/25/2010)
The exhibits are:
1 - Findings of Fact and Conclusions of Law, by the Hon. Ted Stewart, in SCO Group v Novell, the second trial in 2010, 2:04-cv-139-TS.
2 - Final Judgment from the second trial.
3 - The PACER docket listing from July of 2010 to the bitter end for SCO in October of 2010, in SCO Group v Novell, from docket numbers 881 (the notice of appeal) through 893. It also provides a list of every lawyer who ever worked on this case.
4 - Novell's proof of claim for costs from the 2008 Utah trial.
As for the Novell Agreements, or parts thereof, Novell isn't clear what SCO means to do. The notice is vague:1. The Notice Is Vague in Certain Respects
5. As a preliminary matter, Novell finds certain aspects of the Notice so vague as to
create serious uncertainty as to the Trustee’s intentions. First, the information in Exhibit A-2 to
the Notice leaves it unclear whether the Trustee is purporting to assume and assign the APA
itself, or only the SVRX Licenses (also defined below). Novell is advised unofficially that the
Trustee’s intent is only the latter. However, out of caution Novell will address both possibilities. In the end, both essentially share certain key underlying issues regarding assumption and
assignment, whether the Trustee intends to try to assume and assign both the APA and the SVRX
Licenses, or just the SVRX Licenses. There are not only cure amount issues, but fundamental
questions about the Trustee’s ability to assume assign any of the Novell Agreements without
Novell’s consent. Novell does not give its consent.
6. Similarly, Novell is not able to identify certain of the Novell Agreements listed on
page 108 of Exhibit A-3 of the Notice (the “Unix Agreements”). For example, one of the Unix
Agreements listed is described solely as “SOFT-01460.” There are no additional details or
identification of corresponding products licensed through this purported agreement.3 As a result,
Novell is unable at this time to adequately respond on the issue of whether these supposed
agreements are assumable. Novell reserves the right to object to the assumption and assignment
of the Unix Agreements until such time that the Trustee supplies Novell with necessary
clarification.
____________
3
This is precisely the same problem that Novell noted in response to the last effort by the Debtors as debtors in
possession to effect a sale. (See Novell’s Response to the Debtors’ Notice of Cure Amounts (Dkt. No. 858) 2, 4.) It
thus appears that the Trustee has proceeded largely by adopting the work of the Debtors.
Nobody trusts SCO any more, that's clear. So it's cover all possibilities. Novell summarizes the problems like this:
2. Summary of Substantive Issues
7. Though important, vagueness is the least of the Notice’s problems. The first set of
issues concerns the cure amounts. If the Trustee intends to(and can otherwise) assume and
assign the APA itself, the $73,000+ cure amount listed by the Trustee on Exhibit A-2 is wholly
inadequate. Even if the Trustee only intends to assume and assign only the SVRX Licenses (if
that is permissible, which Novell will explain shortly it is not), Novell cannot confirm the
purported $73,000 cure amount because the Trustee and the Debtors have failed for many
months to provide the required royalty reports to Novell.
8. Two further sets of issues concern basic issues of assumability and assignability.
First, the Novell Agreements cannot be assumed and assigned without Novell’s consent. Novell
does not consent. Second, the Novell Agreements cannot be assumed and assigned separately;
they must (along with certain other agreements) be read as a single agreement; under applicable
law, the Trustee must assume and assign all of those agreements or none of them, but he is not
proposing to do so even if he otherwise could.
9. Because of the insurmountable obstacles for the Trustee to assumption and
assignment whatever may be the proper cure amounts, any monetary cure would be futile
because the Trustee still could not assume and assign the Novell Agreements.
10. Finally, having failed to disclose who the bidders are or may be, let alone provide any
financial and other information about them, the Trustee has not produced any evidence of
adequate assurance of future performance of the Novell Agreements.
SCO had until October 25 to let Novell know who the winning bidder at the auction was, but apparently that hasn't happened. You'd think the purchaser might want to know the rights Novell has under the APA and realize it's necessary for it to get Novell's consent. Get a load of this footnote:
9
It would seem that at the very least the Purchaser would want Novell’s voluntary consent anyhow. Otherwise, the
Purchaser faces the prospect of an unhappy Novell exercising certain of its rights that will detract from the value of
the deal the Purchaser makes with the Trustee. For example, Novell, as laid out above, will have the right to require
the Purchaser “to [re]assign [to Novell at Novell’s sole pleasure] any rights to . . . any SVRX License to the extent
so directed in any manner or respect by” Novell. APA § 4.16(b) (emphasis added). Similarly, under the same
provision of the APA, Novell can require the Purchaser to waive certain claims the Purchaser might otherwise have
under the SVRX Licenses. See Final Judgment (Exhibit B hereto) 1-1, ¶3.) Novell can undo what SCO tries to do, if it tries to sell without Novell's consent, despite the APA saying SCO can't do that in the first place.
It appears also, Novell says, that there is no "stalking horse" bidder:
1. The Trustee has not yet announced a proposed transaction in connection with the Sale
Motion; his form of asset purchase agreement is unexecuted and lacks the relevant schedules.
Evidently, the Trustee’s marketing process has not produced a “stalking horse” bidder. The
Trustee is supposed notify Novell and others of any successful bidder immediately following an
auction scheduled for October 25, 2010. (Sale Procedures Order ¶ 7.g.)
What. No one wants to buy these fabulous assets? Or is it that no one wants to tell Novell who it is?
And SCO can't cut up the agreements and assign some and retain the rest. It's all or nothing, Novell points out, under the law: 18. Novell’s objections to the Notice also require a brief summary of applicable
principles of law. The Trustee must take each contract as he finds it, with all of its burdens
along with its benefits. He thus may only assume a contract in whole; he cannot pick and choose
which provisions or benefits or burdens he wishes to assume and assign and which he wishes to
shed. In re Fleming Cos., 499 F.3d 300, 308 (3d Cir. 2007). The assumption and assignment of
a contract is “‘intended to change only who performs and obligation, not the obligation to be
performed itself.’” Id. (citation omitted) (emphasis added).
And if there are related documents, making up a whole, they have to be considered as one. That was SCO's favorite argument about the Amendment 2 to the APA, if you recall:24. Based upon Exide Technologies, it is clear that the Novell Agreements are part of an
integrated transaction that includes all of the APA Agreements. Consequently, the Trustee must
assume all of the APA Agreements (not just the narrower class of the Novell Agreements set
forth in Notice Exhibits A-2 and A-3) or none of them. Exide Techs.; Fleming Cos. Here the
Trustee does not appear to be trying to assume all of the APA Agreements, but only the Novell
Agreements (the APA (or just the SVRX :Licenses) and the agreements on Exhibit A-3). For
that reason alone, Trustee cannot assume any of them. Further, Novell says, the "Trustee may not assume, let alone assign, licenses of copyrights from the copyright
holder without the former’s consent." And guess who is the copyright holder in this picture? It's been litigated up the wazoo, and it's Novell, every time.
P.S., Novell says, SCO owes us some real money not mentioned in its Notice, a whole lot more than the $73,000+ SCO does list: 17. Previously, Novell had also obtained an award in the District Court against SCO of
$3,506,526 (including pre- and post-judgment interest), plus as-yet undetermined costs of up to
$127,432.20.7 Of that sum, $625,486.90 plus accrued interest thereon was paid last Spring as
funds held in trust for Novell (see Agreed Order Approving Stipulation [etc.] (Dkt. No. 1126),
but the balance of about $2,881,040 (plus costs) remains unpaid....
22. If the Trustee intends to assume and assign the APA itself, the cure amount of
$73,436.91 listed on Exhibit A-2 as being owed to Novell plainly is incorrect. It appears to
comprise only the SVRX royalties the Trustee believes are due under Section 4.16 of the APA.
It clearly does not include the $2.88 million balance owed to Novell pursuant to final judgment
of the District Court in favor of Novell. Even if the Trustee could otherwise assume the APA, a
subject Novell will discuss later in this brief, he cannot do so without paying the full balance of
the judgment (including costs once awarded).
23. Second, Novell cannot independently confirm whether the $73,436.91 cure amount
listed as due and owing as of September 30, 2010 is accurate even as to the SVRX Royalties
alone. The Debtors and the Trustee have for many months failed to deliver the monthly reports required of them under APA Section 1.2(b) that Novell depends on for royalty information.
Hence, whether the Trustee intends to assume the APA and the SVRX Licenses, or just the
SVRX Licenses (if they can), the cure amount in the Notice as to the SVRX Licenses requires
further documentation by the Trustee and review by Novell.
Even if Novell were to consent to assignment of the APA, it couldn't do so before being able to evaluate the purchaser:27. Because the Trustee has not identified the prospective Purchaser or exactly what the
Purchaser will be purchasing – there being no actual purchase agreement yet – he cannot yet
provide Novell with adequate assurance of future performance of the terms and conditions of the
Novell Agreements (and, indeed, of the larger family of APA Agreements) to which Novell is
entitled under Code section 365(f)(2)(B). Should the Trustee have and identify a Purchaser by
October 25, 2010 in accordance with Sale Procedures Order ¶¶ 7.e-g., Novell has until
November 1 to raise any issues it has regarding the Purchaser’s ability to provide adequate
assurance of future performance of both the Novell Agreements and, more generally, the APA
Agreements that encompass the Novell Agreements (if, as Novell contends, the Trustee must
assume and assign the latter to assume and assign any of the former and the Trustee seeks to do so. (Sale Procedures Order ¶ 7.h.)
Novell observes in the interim that adequate assurance will
require an assessment not only of such matters as the Purchaser’s technical competence and
financial wherewithal, but also (if the Court agrees that the Purchaser must assume the APA) of
the Purchaser’s ability to develop the “Business” Novell sold to SCO in accordance with APA
Section 4.18. This provision means that the Purchaser must do more far more than simply
collect and remit the SVRX Royalties, for example.
Here's Novell's conclusion:
The Notice and cure amounts therein fail to satisfy the standards for assumption and
assignment of the Novell Agreements requires. In addition, cures would in any case be futile
because, even apart from the open adequate assurance issue, the Trustee cannot assume the
Novell Agreements. SCO is such a tease. Just tell us already. In short, to quote that profound legal scholar, Yogi Berra,
"It's déjà vu all over again."
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Authored by: maroberts on Tuesday, October 26 2010 @ 01:44 AM EDT |
Is the Bankruptcy Court likely to take any notice of Novells objections?
Previously its been doing a pretty good line in ignoring them....[ Reply to This | # ]
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Authored by: alisonken1 on Tuesday, October 26 2010 @ 01:49 AM EDT |
Please list a quick correction in the subject line, then fill in the rest in the
comments
---
- Ken -
import std_disclaimer.py
Registered Linux user^W^WJohn Doe #296561
Slackin' since 1993
http://www.slackware.com
[ Reply to This | # ]
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- Corrections - Authored by: Anonymous on Tuesday, October 26 2010 @ 03:17 AM EDT
- Corrections - Authored by: AndyC on Tuesday, October 26 2010 @ 03:35 AM EDT
- Corrections - Authored by: PJ on Tuesday, October 26 2010 @ 05:44 AM EDT
- July of 2007 -> July of 2010 - Authored by: mattflaschen on Tuesday, October 26 2010 @ 04:36 AM EDT
- it's necessary it to get - Authored by: Erwan on Tuesday, October 26 2010 @ 05:57 AM EDT
- missing paragraph break - Authored by: NigelWhitley on Tuesday, October 26 2010 @ 06:36 AM EDT
- "supposed notify" -> "supposed to notify" - Authored by: swmech on Tuesday, October 26 2010 @ 01:41 PM EDT
- only who performs and obligation - Authored by: Anonymous on Tuesday, October 26 2010 @ 02:17 PM EDT
- kazoo=>wazoo - Authored by: ETian on Tuesday, October 26 2010 @ 06:40 PM EDT
- kazoo=>wazoo - Authored by: PJ on Tuesday, October 26 2010 @ 09:11 PM EDT
- It's Déjà Vu All Over Again. => It's Déjà Vu. - Authored by: studog on Tuesday, October 26 2010 @ 08:01 PM EDT
- News Pick: Copyright, Oracle, and LibreOffice - Authored by: luvr on Wednesday, October 27 2010 @ 08:49 AM EDT
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Authored by: Guil Rarey on Tuesday, October 26 2010 @ 02:11 AM EDT |
Reality, bankruptcy court; bankruptcy court, reality -- it's good you 2 finally
meet.
---
If the only way you can value something is with money, you have no idea what
it's worth. If you try to make money by making money, you won't. You might con
so[ Reply to This | # ]
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Authored by: benw on Tuesday, October 26 2010 @ 02:21 AM EDT |
The lawyers have to say "And then, if it please the court, the party of the
first part did run out of the first door, across the corridor, while wearing a
nightgown, and in through the second door, directly across from the first door,
as indicated in exhibit Q. And then, m'lud, a seltzer bottle was produced, as
witness exhibits R-Z." And they just have to keep on doing it over and over
again in excruciating detail until the *judge* says "this farce has gone on
long enough."
Because, really, this farce has gone on long enough.[ Reply to This | # ]
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- Too Long? - Authored by: Anonymous on Tuesday, October 26 2010 @ 02:52 AM EDT
- Too Long? - Authored by: benw on Tuesday, October 26 2010 @ 02:55 AM EDT
- Answer: - Authored by: Anonymous on Tuesday, October 26 2010 @ 02:58 AM EDT
- Answer: - Authored by: benw on Tuesday, October 26 2010 @ 03:29 AM EDT
- Answer 2: - Authored by: Anonymous on Tuesday, October 26 2010 @ 05:27 AM EDT
- Answer 2: - Authored by: Steve Martin on Tuesday, October 26 2010 @ 06:21 AM EDT
- Answer 2: - Authored by: Anonymous on Tuesday, October 26 2010 @ 08:22 AM EDT
- Answer 2: - Authored by: Anonymous on Tuesday, October 26 2010 @ 08:34 AM EDT
- Answer 2: - Authored by: benw on Tuesday, October 26 2010 @ 01:27 PM EDT
- Answer 2: - Authored by: Lazarus on Tuesday, October 26 2010 @ 03:56 PM EDT
- Answer 2: - Authored by: benw on Tuesday, October 26 2010 @ 04:15 PM EDT
- Answer: - Authored by: DaveJakeman on Tuesday, October 26 2010 @ 06:41 AM EDT
- Infinite Loop, see: Loop, Infinite - Authored by: Anonymous on Tuesday, October 26 2010 @ 03:36 AM EDT
- Too Long? - Authored by: Anonymous on Tuesday, October 26 2010 @ 06:18 AM EDT
- Too Long? - Authored by: ThrPilgrim on Tuesday, October 26 2010 @ 08:56 AM EDT
- Too Long? - Authored by: benw on Tuesday, October 26 2010 @ 05:46 PM EDT
- Too Long? - Authored by: ais523 on Wednesday, October 27 2010 @ 09:52 AM EDT
- Too Long? - Authored by: benw on Thursday, October 28 2010 @ 04:09 PM EDT
- Too Long? - Authored by: wvhillbilly on Tuesday, October 26 2010 @ 07:45 PM EDT
- Too Long? - Authored by: benw on Wednesday, October 27 2010 @ 06:37 PM EDT
- Too Long? - Authored by: Vic on Tuesday, October 26 2010 @ 08:20 AM EDT
- Too Long? - Authored by: esni on Tuesday, October 26 2010 @ 11:10 AM EDT
- Too Long? - Authored by: LaurenceTux on Tuesday, October 26 2010 @ 05:15 PM EDT
- I guess a lawyer can't say "this farce has gone on long enough" - Authored by: dio gratia on Tuesday, October 26 2010 @ 03:16 AM EDT
- They did actually say it! - Authored by: tiger99 on Tuesday, October 26 2010 @ 07:30 AM EDT
- How long? Not longer than the copyrights. - Authored by: Anonymous on Tuesday, October 26 2010 @ 10:41 AM EDT
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Authored by: Anonymous on Tuesday, October 26 2010 @ 05:16 AM EDT |
The plus sign covers the remainder, right? :p [ Reply to This | # ]
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Authored by: tiger99 on Tuesday, October 26 2010 @ 06:32 AM EDT |
.
[ Reply to This | # ]
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- Ubuntu changes its desktop from GNOME to Unity Mark - Authored by: tiger99 on Tuesday, October 26 2010 @ 06:38 AM EDT
- Unity Mark ? - Authored by: Anonymous on Tuesday, October 26 2010 @ 08:36 AM EDT
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- News Pick Gemalto Sues Google, HTC, Samsung Over Java Card Technology - Authored by: dio gratia on Tuesday, October 26 2010 @ 03:51 PM EDT
- Microsoft to charge royalty fees to prevent Acer, Asustek from using Android in netbooks - Authored by: Anonymous on Wednesday, October 27 2010 @ 04:20 AM EDT
- Anti-trust? - Authored by: Anonymous on Wednesday, October 27 2010 @ 05:23 AM EDT
- Completely out-in-the-open anti-competitive behaviour - Authored by: TiddlyPom on Wednesday, October 27 2010 @ 05:48 AM EDT
- Microsoft to charge royalty fees to prevent Acer, Asustek from using Android in netbooks - Authored by: Anonymous on Wednesday, October 27 2010 @ 07:02 AM EDT
- Microsoft to charge royalty fees to prevent Acer, Asustek from using Android in netbooks - Authored by: Anonymous on Wednesday, October 27 2010 @ 09:32 AM EDT
- Microsoft to charge royalty fees to prevent Acer, Asustek from using Android in netbooks - Authored by: capt.Hij on Wednesday, October 27 2010 @ 11:23 AM EDT
- Microsoft to charge royalty fees to prevent Acer, Asustek from using Android in netbooks - Authored by: Anonymous on Friday, October 29 2010 @ 06:30 AM EDT
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Authored by: hopethishelps on Tuesday, October 26 2010 @ 06:51 AM EDT |
The current obfuscation does sound like the old SCO.
But it shouldn't.
The old SCO management team is - supposedly - no longer in charge. The decisions
are being made by a Trustee, Edward Cahn. One of his duties is to look out for
the interests of the creditors.
But his actions recall those of the
long-gone Darl at his worst. The monthly operating reports still say he hasn't
had time to go over the accounts properly. Last-minute surprises still get
sprung on the bankruptcy court, and on the creditors. Nonsensical positions have
still been taken in litigation. And now this, which looks amateurish at best
(that's the most charitable interpretation).
I think some serious
investigation needs to be done here. What is Cahn trying to do? Whose interests
are top of his list? Who is he listening to?
And, finally, is there a
procedure for removing a Trustee who is manifestly ignoring his statutory
duties? [ Reply to This | # ]
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- Whose interests are top of his list? Who is he listening to? - Authored by: DaveJakeman on Tuesday, October 26 2010 @ 07:24 AM EDT
- What's he up to? A nice new yacht, probably - Authored by: Anonymous on Tuesday, October 26 2010 @ 11:20 AM EDT
- Federal Pension? - Authored by: jbb on Tuesday, October 26 2010 @ 08:47 PM EDT
- Batman - Authored by: Anonymous on Wednesday, October 27 2010 @ 09:03 PM EDT
- What is Cahn, the Trustee, up to? - Authored by: jheisey on Tuesday, October 26 2010 @ 01:36 PM EDT
- What is Cahn, the Trustee, up to? - Authored by: Anonymous on Tuesday, October 26 2010 @ 07:57 PM EDT
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Authored by: tiger99 on Tuesday, October 26 2010 @ 07:00 AM EDT |
. [ Reply to This | # ]
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- Landmark ruling on questioning powers sparks law change - Authored by: tiger99 on Tuesday, October 26 2010 @ 07:06 AM EDT
- Prediction for another law suit? - Authored by: tiger99 on Tuesday, October 26 2010 @ 08:38 AM EDT
- Charged for seeking Christian roommate - Authored by: Anonymous on Tuesday, October 26 2010 @ 09:13 AM EDT
- Millions of geeks doing unpaid work to stop use of FOSS and Open Standards - Authored by: Superbowl H5N1 on Tuesday, October 26 2010 @ 12:11 PM EDT
- MS suing for not using their software - Authored by: MadTom1999 on Tuesday, October 26 2010 @ 12:37 PM EDT
- Apple's sex filter patent - Authored by: Anonymous on Tuesday, October 26 2010 @ 12:45 PM EDT
- impressed the pope is starting to "see the light" - Authored by: Anonymous on Tuesday, October 26 2010 @ 02:54 PM EDT
- Secret Button Sequence Bypasses iPhone Security - Authored by: SpaceLifeForm on Tuesday, October 26 2010 @ 05:10 PM EDT
- Judge shields Amazon customer data from N. Carolina tax agency - Authored by: Anonymous on Tuesday, October 26 2010 @ 06:17 PM EDT
- Judge slaps LimeWire with permanent injunction - Authored by: SpaceLifeForm on Tuesday, October 26 2010 @ 06:57 PM EDT
- West Virginia sues Monsanto over access to soybean data - Authored by: SpaceLifeForm on Tuesday, October 26 2010 @ 07:24 PM EDT
- respect a man like Ozzie? - Authored by: Anonymous on Wednesday, October 27 2010 @ 12:08 AM EDT
- CIA Drone-Code Scandal - Authored by: Anonymous on Wednesday, October 27 2010 @ 08:05 AM EDT
- 3M owns purple (or is that Cadbury) and T-Mobile owns magenta - Authored by: TiddlyPom on Wednesday, October 27 2010 @ 09:24 AM EDT
- KB976902 - the "Black Hole" update - Authored by: Gringo on Wednesday, October 27 2010 @ 10:11 AM EDT
- More Windows updates - Authored by: Gringo on Wednesday, October 27 2010 @ 10:52 AM EDT
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Authored by: Anonymous on Tuesday, October 26 2010 @ 07:04 AM EDT |
"It thus appears that the Trustee has proceeded largely by
adopting the work of the Debtors."
That's a good one!
I think it takes quite a bit to make a creditor issue such
criticizing statements.
__
magicmulder[ Reply to This | # ]
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Authored by: tiger99 on Tuesday, October 26 2010 @ 07:07 AM EDT |
. [ Reply to This | # ]
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Authored by: MauriceS on Tuesday, October 26 2010 @ 09:29 AM EDT |
I am intrigued by Novell's reference in para 13 to a recent appeal decision.
Surely this is not SCO's appeal from the Utah jury trial which has been
rejected?[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, October 26 2010 @ 09:57 AM EDT |
BK judges have quite a bit of power to modify existing contracts and
debts. Can he void the sections of the contract that Novell is using to
object?[ Reply to This | # ]
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Authored by: cassini2006 on Tuesday, October 26 2010 @ 09:58 AM EDT |
Going through the list of licenses, I did a text search on the year. 2004
was the last year new licenses were being signed. The majority of the
worthwhile licenses were signed in the mid to late 1990's.
It could be that
SCO's business is essentially dead. Everyone is arguing about legacy
maintenance contracts, and even these contracts don't matter, as the customers
are not using SCO software any longer.
In all important aspects, SCO has
stopped being a software company. It has no plans for the future. For
example:
- SCO's software only works in a virtual machine, because they have
not updated the hardware drivers.
- SCO's software does not support IPv6,
and isn't planned to do so.
- SCO's software is 32-bit, in a 64-bit server
world.
- SCO's software has almost no market. SCO's software has
essentially no presence amongst any leading web supplier. For in-house
applications, customers have had 6 years to port their systems to another
operating system.
In all likelihood, SCO's software sales to "new
applications" have been dead for 6 years.
As such, much of this discussion
could be about obsolete contracts that no longer matter to anyone, (with the
exception of winning lawsuit dreams.)
Even if you got the rights to the once
mighty UNIX, what would you do with it? Put it in a museum? [ Reply to This | # ]
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Authored by: Jim Olsen on Tuesday, October 26 2010 @ 11:59 AM EDT |
In paragraph 15, Novell says:
Finally, and of the utmost
importance, APA Section 9.5(c) expressly prohibits
its
assignment by SCO
without Novell’s consent.
I'm puzzled. My understanding is that
under Se
ction 365 of the Bankruptcy Code such non-
transferability provisions
have
no legal force
against an assumption and assignment such as SCO proposes.
Why
does
Novell
say it's important when it would appear to be
irrelevant?
--- Jim ---
Success in crime always invites to worse deeds. - Lord Coke [ Reply to This | # ]
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Authored by: Gringo on Tuesday, October 26 2010 @ 12:03 PM EDT |
15. Finally, and of the utmost importance,
APA
Section 9.5(c)
expressly prohibits its assignment by SCO
without Novell’s
consent.
We can safely assume, then, that Novell gave its
formal
consent when the Unix business passed from the old SCO to
the new SCO,
but do we have some formal document to that
effect? What kind of public
discussion was there about that
at the time? Now I am thinking back to the
press releases at
the time of the original sale, which were featured as
exhibits in recent court case. Were there similar press
releases when the Unix
business passed to the new SCO?
The reason that I ask is that whatever
happened at the
oldSCO->newSCO transition boundary back then establishes a
sort of precedent for how any future transition should be
handled, in my
none-legally trained mind. [ Reply to This | # ]
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Authored by: nola on Tuesday, October 26 2010 @ 01:24 PM EDT |
So, no funny business, please, your honor.
Since
when has that mattered to BK Court?
It seems to me that if this Judge
doesn't like the rules he just ignores them.
No-one's called him on it yet. [ Reply to This | # ]
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Authored by: Anonymous on Tuesday, October 26 2010 @ 03:32 PM EDT |
Judge Gross does not care. He will do whatever Cahn tells him to without regard
to his duty to the law. After that, it's just a matter of Novell deciding if it
wants to appeal to the district.[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, October 26 2010 @ 04:00 PM EDT |
I get the distinct impression that Novell has decided that there in no love lost
on the Trustee. After the latest judgement, Novell has a firm grip on SCOs
privates, and they are happy to squeeze a bit harder. Paybacks can be rough...[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, October 26 2010 @ 06:18 PM EDT |
Is it still daylight saving time in Delaware? In other places, known as summer
time? I guess it must be, given the ambient hot air. Yes, seems the clocks will
not change until November 7, still summer time in Delaware.
I am not a lawyer. Are you? Cahn is! Cahn is an experienced lawyer, and the BK
court is no stranger to Cahn, and an ex judge to boot, with a courthouse in his
name. If you can think of it, as a legal argument, Cahn and friends had already
thought of it, and already had an answer for the BK court of Delaware.
I am a software developer. I've known so much about Un*x, about BSD, about SVRX,
about Linux ... and these days I know mare than I cared to ever know about
Windows, but it pays the mortgage and (future) college fees (so, please be
merciful).
I have no grounded reason to think, for one moment, that the BK court of Judge K
Gross in Delaware is much different from the BK court of Judge A N Other in
Delaware. Do you?
I would assume that the Novell objection to the Notice of Cure amounts will
simply be over-ruled, and can be simply over-ruled. I assume Cahn knows this,
Gross knows this, and Novell's lawyer know this as well.
It must be summer time in Delaware, still.
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Authored by: kh on Tuesday, October 26 2010 @ 07:11 PM EDT |
Or can they do whatever they like? Converting and effectively stealing Novell's
money with gay abandon?
Where is the law in this?
Why aren't we seeing a move to convert SCO to Chapter 7?
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Authored by: dmarker on Tuesday, October 26 2010 @ 10:34 PM EDT |
Hmmmm, after reading everyone's thoughts & comments re the position
Cahn & tSCOg are in after Novell's objection, only one phrase comes to mind
...
"How now, brown cow" ?
DSM
(I vaguely recall it being
said by Daffy Duck speaking to Elmer Fudd after Fudd blew the barrel off his gun
while trying to terminate Daffy. Both characters seem appropriate to some sort
of role within the tSCOg saga - not sure who is who though :) :)
)
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Authored by: Gringo on Wednesday, October 27 2010 @ 09:49 AM EDT |
It would seem that at the very least the
Purchaser would want
Novell’s voluntary consent anyhow.
Otherwise, the Purchaser faces the
prospect of an unhappy
Novell exercising certain of its rights that will
detract from the value of the deal the Purchaser makes with
the
Trustee.
In other words, a warning to prospective buyers -
don't
even think about buying any part of SCO's APA-related
assets, or the
full weight of Novel's legal resources will
come down on you so hard you will
wish you were dead. That
is a not too subtle threat that immediately ends any
possibility of anyone bidding unless they are at least
bigger than Novell.
Even if such a purchaser feels capable
of facing Novell's wrath, it would
likely become so
expensive as to not be worth the effort.
This leads
me to speculate that this being published here
on Groklaw, along with all the
enlightened comments from PJ
on down, could potentially be the most upsetting
article yet
for Cahn and his pals, since it could be construed as
directly
interfering in their efforts. I really doubt
anybody would dare to bid on the
assets now after reading
this.
Perhaps no other article posted during
Cahn's entire
tenure would have had such a direct impact. Then we might
speculate that Cahn and his Darkside Force BS&F may try to
attack
Groklaw?
Of course many articles on Groklaw would have been
similarly
upsetting to the old SCO board. In fact they did
attack Groklaw once in the
past, but never tried anything
again. Now, however, with Cahn in charge, they
may decide to
to try a different approach to take down Groklaw. [ Reply to This | # ]
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Authored by: Anonymous on Wednesday, October 27 2010 @ 12:53 PM EDT |
novell buys sco for a buck
saves 7 years of court costs and taxes and we all go home with linux on a
computer
i know i can dream[ Reply to This | # ]
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- my remedy - Authored by: benw on Wednesday, October 27 2010 @ 01:11 PM EDT
- my remedy - Authored by: Anonymous on Wednesday, October 27 2010 @ 08:00 PM EDT
- my remedy - Authored by: benw on Friday, October 29 2010 @ 03:36 PM EDT
- my remedy - Authored by: Anonymous on Wednesday, October 27 2010 @ 02:24 PM EDT
- my remedy - Authored by: benw on Wednesday, October 27 2010 @ 04:41 PM EDT
- my remedy - Authored by: Anonymous on Thursday, October 28 2010 @ 01:11 AM EDT
- my remedy - Authored by: Ian Al on Thursday, October 28 2010 @ 03:43 AM EDT
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