|
|
| Marbux on DaimlerChrysler - Now What? |
 |
|
Sunday, December 19 2004 @ 12:47 PM EST
|
Here's Groklaw's marbux, who as you know is a retired attorney, imagining how he might strategize, if he were the attorney for DaimlerChrysler.
*****************************
Now that the court has denied SCO's motion to stay the Daimler-Chrysler case until after SCO v. IBM is decided, the pressure is on SCO and its lawyers to decide what to do before the trial date. That's on January 7, 2005, only a few short weeks from now, coming up fast.
But just how much pressure is SCO under? Because of the narrowness of SCO's only remaining "timeliness of notice" claim and the court's "rocket docket" trial date, most if not all of the trial preparation work has happened behind the scenes. So we can only speculate about the pressure, but that doesn't mean we have no informed basis for speculation.
It's reasonable to assume that Daimler-Chrysler doesn't want to run up the legal bills, and doesn't share the F/OSS community's concern about how SCO loses, as opposed to whether SCO loses. DC just wants the case to go away as cheaply and quickly as possible. At the same time, let's assume that DC isn't interested in getting a reputation for giving in to shakedown artists, so in DC's mind, the only way the case settles is SCO's unconditional surrender. Any SCO damages are trivial at best, so it's very low risk for DC to fight the case all the way.
All SCO's claims but the timeliness of DC's response to SCO's certification demand were dismissed on partial summary judgment (PDF). So realistically, only two of the SCO complaint's items of requested relief are still in play at all. All SCO can ask the court for now is to:
- Enter an order permanently enjoining DC from further violations of the DC Software Agreement; and . . .
- Award damages in an amount to be determined at trial[.]
SCO Complaint.
Somewhat incredibly, SCO announced it still intends to force a trial on whether DC's response to the certification demand letter was timely. Time to map out a case strategy for what's left. Let's try to imagine that we are DC's lawyers, planning the next move. Got your popcorn? Time to take your seat and let the show begin. DC lawyer thoughts, as I imagine them, are in colored text.
* * * * *
The judge is right. There's a jury issue about the timeliness of DC's response letter. We can put together some evidence showing the circumstances and probably win. But that issue is about as exciting as mud pies. Can we risk putting the jury to sleep? And what if the jury decides that just focusing on the amount of time allowed in the license agreement gets them back home faster than bickering over all the excuses for being tardy. Being late means you get sent to the principal's office, right? What can I do to jazz up our defense? Let me take a look at our answer to the complaint and see if I raised any defense that might get the jury moving in our direction.
Let's see (flip, flip, flip) ... ah, here they are, our affirmative defenses:
1. Failure to State a Claim. The Complaint fails to state a claim against DCC upon which relief can be granted.
2. Waiver, Estoppel, Laches, Unclean Hands and Acquiescence. Plaintiff's claims are barred by the doctrines of waiver, estoppel, laches, unclean hands and/or acquiescence.
3. Lack of Capacity to Sue. Plaintiff is not a party to the License Agreement attached to the Complaint, and therefore Plaintiff may lack the capacity to sue.
4. Lack of Standing. Plaintiff is not a party to the License Agreement attached to the Complaint, and therefore Plaintiff may lack standing to sue. Plaintiff also lacks standing to sue because the terms of Plaintiff's contract with Novell, Inc. ("Novell") require Plaintiff to waive its right to enforce the License Agreement upon Novell's request, which, upon information and belief, Novell has expressly requested Plaintiff to do.
5. Lack of Case or Controversy. Plaintiff's action for declaratory judgment fails for lack of a case or controversy because DCC did not breach the License Agreement.
6. Lack of Breach/Cure of Alleged Breach. Plaintiff fails to identify a duty under the License Agreement that DCC breached, and DCC has cured any alleged failure to comply with an actual duty under the License Agreement. Nothing set forth herein shall be construed as an admission by DCC that it has failed to comply with any duty under the License Agreement.
7. Mitigation of Damages. The damages sought by Plaintiff are not recoverable because Plaintiff has failed to mitigate its damages.
8. Plaintiff's Claims are Moot. The claims asserted in the Complaint are moot because DCC has provided Plaintiff with a proper certification under the License Agreement.
9. Bar by Third-Party Contract. Plaintiff is barred from asserting the claims in the Complaint by its contract with Novell, Inc.
10. Reservation of Right. DCC reserves the right, upon completion of its discovery and investigation or otherwise, to assert such additional defenses as may be appropriate.
Hmm ... Let's see. Number 6 is the "put-'em-to-sleep" mud pie argument and number 7 goes with it. Defenses 1, 4, 5, and 8 are issues for the judge rather than the jury. Number 6 would be expensive to prove.
But 4 and 9 can be read together for a jury issue. And number 2? Well, Novell's instruction to SCO to drop the case asserted a right under its APA contract to "waive" SCO claims, so waiver is relevant. Ah, yes. Unclean hands, too.
O.K., think it through. So SCO was required to drop the lawsuit after Novell told them to, but they didn't, and they just kept on suing us. Sounds like dirty hands to me. My, I do love that jury instruction. All the jury has to do is read that part of the APA giving Novell the power to forbid lawsuits and the Novell letter to SCO telling them to drop our case, then just let the SCO lawyer try to argue that the APA doesn't mean what it says in plain English. Let him make things complicated, not us. I'll just wave Novell's letter to SCO telling them to drop the case. Let's see ... How should the argument go?
"Ladies and gentlemen of the jury: SCO didn't have the right to make you decide this in the first place, folks. The judge is going to instruct you on the law, and I ask you to listen very carefully to his instruction about the Doctrine of Unclean Hands. SCO has dirty hands because this contract and this letter from Novell absolutely required SCO to drop this lawsuit, but they didn't. Even though they no longer had any right to sue, they just kept suing us. And even if you disagreed with me about that, wasn't being a few days late justified to check out who SCO is, since their name isn't even on the license agreement with DC, and why they're demanding all that information the judge already ruled they weren't entitled to, and finding out they're suing companies all over the place, and needing to have our lawyers look it over before we responded, and ... Just why are we all here trying to figure out why being a little late ruffled their feathers so bad? And damages, how can they claim they suffered money damages and still keep a straight face? We're late answering their letter and they want you to give them money for it?"
That's a workable trial theme, all right. Keep it simple. This makes them the bad guys and gives us the white hat and the moral high ground. Now let's look at the big picture. How will SCO's lawyers react? Hmm. Looks like winning on this defense would block every case SCO has filed because Novell told SCO to drop all of them. Collateral estoppel strikes again. That would leave just Red Hat's case and IBM's counterclaims. And the judge is holding their feet to the fire in our case with a fast trial date coming up quick. This really gives us a red hot poker for a trial strategy. If I let SCO know what's coming, they might just drop this thing before trial.
So let's say I do three depositions. One for Novell to have them authenticate the Novell-Old SCO agreement and the Novell letters to New SCO, demanding that SCO drop the cases. One for SCO to prove that they got all those letters but decided to keep going after DC and the other companies anyway. That's a one-day trip to Utah. One deposition for the SCO damages expert just to nail down what he's going to say so there are no surprises. Maybe I can do that on the same trip.
Let's see. They could brazen it out and try to beat us at trial. Naw, they don't want to risk all their cases being dismissed because of this case. They're fantasizing big bucks in the IBM case. They'll chicken out. They could drop the case, but that would make it look like they're giving up on their protection racket. Wouldn't investors wonder how they're going to find out who they can sue if they can't demand the kind of information they tried to get from Daimler-Chrysler?
What's left? Oh, that's it. They'll probably just drop the timeliness stuff just before trial and ask the judge to enter final judgment on the rest of the case so they can appeal.
It's damage control time for them, and dropping the remaining claim then appealing the rest will at least buy them some time to think about what they're going to do if they can just make it past the Michigan border alive. I like this. I should give DC a call and get approval on the strategy.
* * * * *
O.K., show's over. Please drop your popcorn containers in the trash bins in the lobby on your way out.
That was all speculation, of course. We don't really know what went on inside the brains of the DC lawyers (but we'd like to, wouldn't we?). Maybe they've found something even better. Maybe they didn't give the SCO lawyers any warning about what's coming. Maybe they got them to stipulate to the necessary facts and didn't even have to go to Utah for depositions. Who knows?
But one thing folks who read Groklaw can count on: It isn't concern for SCO's welfare that's guiding the DC lawyers' thinking and trial preparation. There is, after all, a reason people think about sharks when they think about lawyers. Experienced lawyers know how to bite.
|
|
|
|
| Authored by: chrisbrown on Sunday, December 19 2004 @ 12:49 PM EST |
Please HTML tag your links (& use HTML Formatted for them):
<a href="http://www.example.com/thispage.html">Click
Here</a>[ Reply to This | # ]
|
- Jury Service, My Rotten Luck - Authored by: chrisbrown on Sunday, December 19 2004 @ 12:57 PM EST
- Jury Service, My Rotten Luck - Authored by: chrisbrown on Sunday, December 19 2004 @ 01:20 PM EST
- Jury Service, My Rotten Luck - Authored by: geoff lane on Sunday, December 19 2004 @ 01:27 PM EST
- Jury Service - Authored by: chrisbrown on Sunday, December 19 2004 @ 01:29 PM EST
- Jury Service, My Rotten Luck - Authored by: John Hasler on Sunday, December 19 2004 @ 02:14 PM EST
- Me, Too! - Authored by: Simon G Best on Sunday, December 19 2004 @ 02:32 PM EST
- Me, Too! - Authored by: Anonymous on Sunday, December 19 2004 @ 03:36 PM EST
- Jury Service, It's not always a great experience - Authored by: aussiedave on Sunday, December 19 2004 @ 04:08 PM EST
- Jury Service, It's not always a great experience - Authored by: jgold on Sunday, December 19 2004 @ 04:47 PM EST
- Jury Service, It's not always a great experience - Authored by: John Hasler on Sunday, December 19 2004 @ 05:42 PM EST
- Jury Service, It's not always a great experience - Authored by: Anonymous on Sunday, December 19 2004 @ 06:39 PM EST
- Jury Service, It's not always a great experience - Authored by: Anonymous on Monday, December 20 2004 @ 04:31 PM EST
- Jury Service, It's not always a great experience - Authored by: Anonymous on Monday, December 20 2004 @ 04:34 PM EST
- Jury Service, another view - Authored by: Anonymous on Sunday, December 19 2004 @ 08:35 PM EST
- Jury Service vs. Jury Duty - Authored by: Anonymous on Sunday, December 19 2004 @ 11:47 PM EST
- Jury Service, My Rotten Luck - Authored by: blacklight on Monday, December 20 2004 @ 10:06 AM EST
- Is groklaw being hijacked? - Authored by: Anonymous on Sunday, December 19 2004 @ 02:48 PM EST
- Would an RSS feed for groklaw be possible. - Authored by: Anonymous on Sunday, December 19 2004 @ 04:34 PM EST
- Off-A nice summary - Authored by: tbogart on Sunday, December 19 2004 @ 04:54 PM EST
- OT The New York Times likes Firefox. - Authored by: Brian S. on Sunday, December 19 2004 @ 08:35 PM EST
- Singapore IP laws - Authored by: teknomage1 on Sunday, December 19 2004 @ 08:54 PM EST
- Reminder: Opposition(s) to motion to unseal due today - Authored by: fudisbad on Sunday, December 19 2004 @ 10:55 PM EST
- OT - IDC: "Linux will reach $35.7 billion in the next four years." - Authored by: webster on Monday, December 20 2004 @ 12:08 AM EST
- Jury service in rural America - Authored by: Anonymous on Monday, December 20 2004 @ 10:39 AM EST
| |
| Authored by: Anonymous on Sunday, December 19 2004 @ 01:00 PM EST |
Thanks, marbux, for giving us some insight into "lawyer think," as
well as some possibilities as to how this case might go.
Well Done!
Larry N.[ Reply to This | # ]
|
| |
| Authored by: elcorton on Sunday, December 19 2004 @ 01:07 PM EST |
Excellent article, thanks. I have a couple of questions.
First, what's
the difference between lack of capacity to sue and lack of
standing? You
indicate that both are based on the premise that new SCO is
not a party to the
UNIX license agreements.
Second, if your scenario (defense based on the
Novell waiver) plays out,
would
collateral estoppel apply to cases already
filed? My understanding is that it
would only preclude future claims. Are all
Novell waivers equivalent for that
purpose? [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Sunday, December 19 2004 @ 01:14 PM EST |
my interpretation was not that dcc was late in responding, but that sco MIGHT be
able to make that claim due to the lack of specificity in the contract. it is
still up to sco to show how they arrived at the conclusion that dcc is
"late" and get the jury to agree.
i don't see an admission of guilt by dcc as being anything other than a win for
sco, even if only in the court of public opinion.
sum.zero[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Sunday, December 19 2004 @ 01:40 PM EST |
That was really interesting! Especially the analysis of how to defend, ruling
out many defenses just because they would BORE the jurors. That's an aspect I
hadn't thought of before. Keep it simple, make SCO "The Bad Guy", that
sounds like the best strategy.
DC would even have fun with the "reasonableness" of SCO's requests
too. Imagine the chuckles when DC shows the jury how UNreasonable SCO was, not
only in requesting the info, but even afterwards. In particular, when DC replied
"We don't use Unixware anymore, we don't have a list of CPUs because we
haven't used it in 7 years!", SCO angrily screamed back "HA, that
reply is not a list of CPUs! You're not answering the demand!" I can see
the jury's eyes roll at SCO's behavior and crazy interpretations.
Of course, SCO will indeed withdraw this last timeliness point at the last
minute to avoid the embarassment of a trial, and then file an appeal to stretch
it out all over again.[ Reply to This | # ]
|
- A great read - Authored by: Anonymous on Sunday, December 19 2004 @ 01:58 PM EST
| |
| Authored by: Anonymous on Sunday, December 19 2004 @ 01:45 PM EST |
The license agreement doesn't specify a response time. The 30 days was just a
request by SCO.
[ Reply to This | # ]
|
| |
| Authored by: blacklight on Sunday, December 19 2004 @ 01:46 PM EST |
I look forward to SCOG being charged attorney fees for that little stunt. SCOG
was willing to drop the timeliness issue, probably because it wasn't going to be
a winner. I expect SCOG to do as marbux predicts: drop the timeliness issue and
ask the judge to enter a final judgment so that they can appeal it. However,
SCOG's abiity to distinguish pugnaciousness from stupidity is rather limited.[ Reply to This | # ]
|
| |
| Authored by: The Mad Hatter r on Sunday, December 19 2004 @ 01:57 PM EST |
While allowing SCO to settle would probably save Daimler Chrysler some money,
the impression I've gotten from the transcripts of the case is that their
lawyers are playing for keeps.
This makes the "Shark Attack" scenario more likely, and the case more
interesting.
Also DC isn't working in a vacuum. SCO has also brought suits against IBM,
Novell, and Autozone, and is being sued by Red Hat. This could have an effect on
DC's actions in court.
I know that DC's lawyers aren't employed for my entertainment, but they've been
doing a good job so far and they have my thanks for the show.
---
Wayne
telnet hatter.twgs.org
[ Reply to This | # ]
|
| |
| Authored by: NemesisNL on Sunday, December 19 2004 @ 02:28 PM EST |
| This is what interests me. Marbux seems to think SCO will appeal just to stretch
the case out a little further.
This raises a question though. Did the judge in
this case worry about the chance of an apeal or is it that SCO can appeal
whatever they like.
In the IBM case many speculate that the judges give in to
almost every delay tactic because they want to make sure there is nothing to
appeal before they strike for SCO for real. It's just being professional they
say.
So the judge in the dcc case is not being professional? I'd realy like to
understand why one judge can see through and deal with SCO's delay tactics while
others seem to feel they need to cater to SCO's every whim in order to avoid
appeal.
SCO's case against IBM has almost fallen appart completely and still
they get more time, rulings take forever and somehow this case drags on and on.
Even Linus made a remark about it (quoted from the groklaw
article):
TORVALDS: Oh, these days I just worry about how long it
drags out. I always was of the opinion that there was no case....
Exactly!
So why the difference in dealing with SCO as far as the sco-ibm judges and the
one in the sco-dcc case?
I am not a lawyer and not even an american but I sure
find it harder and harder to buy the "they're just trying to avoid appeals"
argument.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Sunday, December 19 2004 @ 03:05 PM EST |
Seems to me that "all cases" here is less than marbux's language
suggests.
IBM? it's a contract case arising from Project Monterey stuff, isn't it. And
if necessary, has been all along.
Novell? Well, Novell telling them they can't is clearly not relevant there.
Redhat and IBM's counterclaims are already excluded. So that leaves only
Autozone as potential collateral damage, yesno?[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Sunday, December 19 2004 @ 03:47 PM EST |
With all the great analysis and commentary provided by PJ and then the
follow-ups with a lot of the other folks (won't name any for fear of leaving
someone out), Groklaw continues to educate on legal proceedings and even
entertains. :)
John
Eats, shoots and leaves
[ Reply to This | # ]
|
| |
| Authored by: RabidChipmunk on Sunday, December 19 2004 @ 05:28 PM EST |
I want to hear the DC lawyers sidle up to the jury and say:
"If you got a letter from the Honda dealership about the undercoating on a
Ford you totalled seven years ago, you'd be a little confused. --Heck, I'd
probably throw it away."
[ Reply to This | # ]
|
| |
| Authored by: tknarr on Sunday, December 19 2004 @ 05:39 PM EST |
I have to pretty much agree with Marbux. The only thing I'm not sure of is
how much emphasis DCC will put on the fact that Novell told them not to sue. I'm
of the opinion that they'll put enough into that to make it clear to the judge,
but not risk looking too nit-picky about it for the jury. I think they'll put
the most emphasis on the initial letter and all of SCO's missteps in handling it
(wrong address, failure to fulfill their obligation to inform DCC when SCO took
over the licenses, over-broad language that took lawyer time to pare down to
what was really required, etc.).
My bet's on a two-part strategy: the
waiver by Novell aimed at getting the judge to rule without handing it over to
the jury at all, SCO's mishandling of the demand aimed at the jury if they get
it. This sound reasonable? [ Reply to This | # ]
|
| |
| Authored by: kberrien on Sunday, December 19 2004 @ 05:47 PM EST |
A great article. While speculative, its a good fictional account how lawyers
build a case strategy, especially keeping the jury in mind. So far, my Groklaw
legal education hasn't included juries![ Reply to This | # ]
|
| |
| Authored by: Walter Dnes on Sunday, December 19 2004 @ 05:57 PM EST |
With anybody else, it would be a given, but with "the gang that couldn't
sue straight", I invoke an 8086 assembler directive "ASSUME
NOTHING". My question is... does anyone know if SCOX used registered mail
(or equivalant) to send their letter? If not (i.e. if they used regular mail),
what would it do to their "case"?[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Sunday, December 19 2004 @ 06:41 PM EST |
1. According to DC's latest filing
- SCO has not filed a witness list in this case, and the date for doing so has
long past
- SCO has not filed a list of exhibits in this case, and the date for doing so
has long past
- SCO has not done any discovery in this case, and the date for doing so has
long past
2. Also attached to DC's latest filing was SCO's certification request letter
with the envelope
- Showing it was sent to the wrong company
- At the wrong address
- During the holiday period
- And it demands things that the court has already determined was not required
by the AT&T agreement (Linux certification) and doesn't actual demand the
certification statement that is in the contract
- It has a 30 day time limit (for what should be no more than an annual
statement) - which is not specified anywhere in the contract, but is what is
SCO's suggestion ought to be reasonable (and SCO based that suggestion solely on
the UCC -- and *NOT* on any express term or conduct of the parties (see SCO's
own Broderick affidavit)
- DCC had not used the software for 7 years, and had never had *any* prior
contact with SCO on licensing issues
3. Given point #1
- SCO don't have any evidence of damages to introduce at trial (or indeed any
evidence at all)
4. Given point #1 + the last two item in #2
- SCO don't have any evidence of past conduct of the parties (second to last
paragraph of #2) to introduce at trial
- SCO don't have any evidence that they cared for the last X years, or that DC
knew or should have known that they had the licensing rights (even if they do
have em, which Marbux raises some issues about in his article) -- reference,
last para in item #2
So I am confused what possible jury trial there can realistically be.
I assume as SCO have presented no evidence for damages, they can't argue for
them (?)
And I assume as SCO haven't presented their witness or exhibit list -- any trial
will be DCC showing the AT&T agreement, the testimony/exhibits in #2 ---
with no SCO rebuttal evidence.
And SCO basically saying with no supporting evidence or testimony "we don't
think it's reasonable to take more than 30 days", and trying to win the
declaratory judgement (but no damages, because they can't introduce evidence of
damages).
Am I right?
And if I'm not right, how can SCO get to do a Perry Mason moment introducing
surprise evidence, which they have refused to disclose to DCC or the court?
Quatermass
IANAL IMHO etc
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Sunday, December 19 2004 @ 06:51 PM EST |
I'm of two minds:
First, REAL issues, complex or boring as they may be, need to be addressed in
the courtroom. Otherwise dumbing down is an admission that justice has a slim
chance given that our "peers" might be too dense. Maybe lawyers need
better skills in presenting complex arguments?
On the other hand "If the glove don't fit you gotta aquit" seems to be
the rule of the day. If dumbing down did not work, then it would not
considered.
Spells trouble for IBM I would think.
[ Reply to This | # ]
|
| |
| Authored by: julian on Sunday, December 19 2004 @ 07:31 PM EST |
I wonder if the DCC lawyers are considering the PR benefits of winning. The
Groklaw followers are a good demographic to target. Most of us are above average
in income and we are also people others ask for advice on lots of issues.
If DCC squashes SCOG like a bug going beyond what is the minimum to win the case
they would have a lot of people considering DCC for their next vehicle. If they
make SCO look bad enough they would have a good change of getting SCO to pay
their costs.
The last idea I had was the auto companies are in court a lot looking like bad
guys much of the time, even when it isn't their fault. This is a case where they
can finish looking like white knights with almost no down side beyond legal
expences. And those expences may be recoverable.
---
John Julian[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Sunday, December 19 2004 @ 10:44 PM EST |
Can I suggest a pre-conference call summary of the legal actions SCO is engaged
in be created as a new item on Monday for the benefit of any not following the
case as closely as the rest of us.
For each case
- who is involved and what side they are on.
- rulings made by the courts
- last court appearances and why
- any claims up for judgement
- any claims up for hearings
- general summary of the case
- list of references to a few relevant past groklaw items
Keep it short and factual so the only point of potential bias is in the summary.
Sort of a Groklaw quarterly summary.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Monday, December 20 2004 @ 04:49 AM EST |
The best defense to this would simply been to have denied it was ever delivered.
The license required 'certified mail' and with ordinary mail, theres always the
risk it doesn't get through. DC could have bought more time simply by saying
'what letter?' .. but its too late for that now IMHO, as they admitted the date
they got it.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Monday, December 20 2004 @ 08:50 AM EST |
<i>SCO has dirty hands because this contract and this letter from Novell
absolutely required SCO to drop this lawsuit, but they didn't.</i>
I think all of the affirmative defenses sound weasely.
Isn't it more likely the people who could act on the letter didn't get it
immediately as it worked it's way through various DC offices. Wouldn't it also
be likely that responding to a letter like this might be viewed as a low
priority thing?
How about this defense...
"DC was late in responding. DC is sorry. DC hasn't used their software in
years. But, DC's failure to respond in the time allowed didn't cost SCO
anything, so damages should be zero.
Why are we in court over this? Because there were other matters - vastly more
important matters - that have already been resolved by the court, but SCO
chooses to place this remaining issue before you.
Put yourself in DC's shoes. You used to have an old washing machine. You
purchased a new washing machine. You forgot the old washing machine had a
warranty. The manufacturer of the old washing machine sent you a letter telling
you to confirm the serial number on your old washing machine. You have a lot
going on in your life and you put this letter with your stack of bills to be
paid at the end of the month. You eventually write back that you no longer have
the washing machine, but it takes you some time to do so. Then the washing
machine manufacturer summons you to court and asks that you pay them damages for
replying to slowly. How much money has the washing machine manufacturer lost
because of your late response? Was their business paralyzed until you responded?
No. Did your late response keep others for purchasing new washing machines?
No."[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Monday, December 20 2004 @ 02:36 PM EST |
DCC should get at minimum all court and legal fees paid by SCO. Therefore the
question is will this scenerio provide this? In otherword, SCO would agree to
not just drop this last complaint, but pay DCC legal fees as well. If they
can't be convinced of this, then DCC should do whatever they need to do at trial
to get the fees paid. (Good Detroit Lawyers are not cheap.)
A Michigander![ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, December 21 2004 @ 12:14 AM EST |
I have three points that may be food for thought.
1. Of all the defenses listed, does any of them cover the poor job SCO did of
notification? I.e. wrong address, wrong adressee, not clearly pointing out
succesion of interest, not having evidence of succession of interest, not
certified as per agreement, the arbitrary nature of the 30 day requirement,
requesting the exhumation of a hore dead seven years now?
2. How about a defense along the lines. SCO wanted a trial, it did not matter if
they had been wronged or not. They wanted to bully lunch money from everyone.
They are unwilling to check to see there was a communication problem,
after disguising their demmands as in comprehensible junk mail. There pursuit
of trial after finding out that DCC has not been using their software for seven
years, long before Caldera aka TSG had an agreement with Novell to amend. SCO's
wants a trial even if the only triable issue left is on account of SCO's lack of
dilligence. SCO was looking for trouble, they got what they wanted, they should
foot the bill. This does not sound like a bore the jury argument, it sounds
like they better hope they jury never had to face divorce proceedings that had a
single issue of contention.
3. If I were a DCC attorney, I think what I would want to spend half of my time
on is the terms, conditions and wording of the agreement that I would be ready
to offer SCO to put this case behind us. With a special emphasis to guard
against the myriad weasly manuvers that might be tried to wriggle out of the
agreement. And maybe finding a way or two to put in some seemingly innocent
clauses that sound reasonable on the first read but could make for terrifying
reading to an attorney that would like to stir up new trouble form DCC.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, December 21 2004 @ 11:32 AM EST |
Vindication? Naaa.
Defeat only on the issue of being late. Big deal.
Would there even be a need for a jury if DC admitted they were late? Doesn't the
judge determine the punishment, or is that just for criminal cases?[ Reply to This | # ]
|
|
|
|
|
