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Kimball Denies SCO's Ex Parte Motion to Adjourn |
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Friday, April 15 2005 @ 12:55 AM EDT
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Judge Kimball has issued his Order [PDF] regarding SCO's Ex Parte Motion to Adjourn the April 21, 2005 Argument on SCO's Motion to Amend Its Complaint: Motion is DENIED. Maybe his stomach turned just like mine did when I read their rhetoric. Anyway, for whatever reason, it looks to me that Judge Kimball is on his horse now and determined to ride. So, April 21st is back on the calendar big time. I hope some of you will be able to attend. Also, SCO has finally filed its 10Q.
******************************
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
THE SCO GROUP, INC.,
Plaintiff/Counterclaim-Defendant,
v.
INTERNATIONAL BUSINESS MACHINES
CORPORATION,
Defendant/Counterclaim-Plaintiff.
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ORDER REGARDING
APRIL 21, 2005 HEARING
Civil No. 2:03CV-0294 DAK
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This matter is before the court on Plaintiff/Counterclaim-Defendant The SCO Group, Inc.'s ("SCO") Ex Parte Motion to Adjourn the April 21, 2005 Argument on SCO's Motion to Amend its Complaint. The court has carefully considered the memoranda and other materials submitted by the parties. Now being fully advised, the court renders the following Order.
The court declines to adjourn the hearing. Accordingly, IT IS HEREBY ORDERED that SCO's Ex Parte Motion to Adjourn the April 21, 2005 Argument on SCO's Motion to Amend Its Complaint is DENIED. In addition to hearing SCO's Motion to Amend its Complaint and SCO's Motion to Compel the Deposition of Samuel Palmisano at the April 21, 2005 hearing, the parties are hereby NOTIFIED that the court will also hear argument regarding the parties' Proposed Scheduling Orders.
DATED this 13th day of April, 2005.
BY THE COURT:
___[signature]___
DALE A. KIMBALL
United States District Judge
United States District Court
for the
District of Utah
April 14, 2005
* * CERTIFICATE OF SERVICE OF CLERK * *
Re: 2:03-cv-00294
True and correct copies of the attached were either mailed, faxed or e-mailed
by the clerk to the following:
Brent O. Hatch, Esq.
HATCH JAMES & DODGE
[address]
EMAIL
Scott E. Gant, Esq.
BOIES SCHILLER & FLEXNER
[address]
Frederick S. Frei, Esq.
ANDREWS KURTH
[address]
Evan R. Chesler, Esq.
CRAVATH SWAINE & MOORE
[address]
EMAIL
Mr. Alan L Sullivan, Esq.
SNELL & WILMER LLP
[address]
EMAIL
Todd M. Shaughnessy, Esq.
SNELL & WILMER LLP
[address]
EMAIL
Mark J. Heise, Esq.
BOIES SCHILLER & FLEXNER
[address]
EMAIL
Mr. Kevin P McBride, Esq.
[address]
EMAIL
Robert Silver, Esq.
BOIES SCHILLER & FLEXNER
[address]
Stuart H. Singer, Esq.
BOIES SCHILLER & FLEXNER
[address]
EMAIL
Mr. David W Scofield, Esq.
PETERS SCOFIELD PRICE
[address]
EMAIL
Mr. Michael P O'Brien, Esq.
JONES WALDO HOLBROOK & MCDONOUGH
[address]
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Authored by: Anonymous on Friday, April 15 2005 @ 01:10 AM EDT |
This tastes better than the rhetoric. [ Reply to This | # ]
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Authored by: kb8rln on Friday, April 15 2005 @ 01:17 AM EDT |
It is nice too see a ruling to get the case done.
--- Director Of
Infrastructure Technology (DOIT)
Really this is my Title so I not a Lawyer.
[ Reply to This | # ]
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- Not so much - Authored by: Anonymous on Friday, April 15 2005 @ 03:44 AM EDT
- Not so much - Authored by: Anonymous on Friday, April 15 2005 @ 11:46 AM EDT
- Not so much - Authored by: cdru on Friday, April 15 2005 @ 12:00 PM EDT
- Not so much - Authored by: Anonymous on Friday, April 15 2005 @ 03:16 PM EDT
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Authored by: jimbudler on Friday, April 15 2005 @ 01:18 AM EDT |
So PJ can find them...
---
Jim Budler[ Reply to This | # ]
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Authored by: Anonymous on Friday, April 15 2005 @ 01:19 AM EDT |
(1)
http://www.sec.gov/Archives/edgar/data/1102542/000110465905016503/a05-6736_1ex10
d1.htm
EMPLOYEE INCENTIVE BONUS PROGRAM
4.0
BONUS POOL
The Bonus Pool will be comprised of three
components: 1) 40% related to revenue; 2) 40% related to operating performance;
and 3) 20% related
to personal objectives.
There will be no Bonus Pool
established unless the revenue and operating performance targets are attained at
100%. Additionally, if the Bonus
Pool and subsequent payment of bonuses causes
the UNIX business to have negative cash flow for a particular quarter, the
Bonus Pool will be
pro-rated to ensure that the UNIX business does not generate
negative cash flow.
(2)
http://www.sec.gov/Archives/edgar/data/1102542/000110465905016503/a05-6736_1ex10
d3.htm
Notice of Grant of Stock Option for Executive
Officers
6. Corporate Transaction
(a)As set forth in the Grant
Notice, in the event of a Corporate Transaction, if the Optionee remains in
service with the
Company when a Corporate Transaction occurs, all Option Shares
that would have become vested upon continued Service shall immediately
vest in
full and become exercisable notwithstanding any provision to the contrary of
such grant and shall remain exercisable until it expires or terminates in
accordance with its terms.
...
APPENDIX
The following
definitions shall be in effect under the Agreement:
...
G.
Corporate Transaction (i) shall have the
meaning of the term “Change in Control” as defined in the Change in
Control
Agreement dated December 10, 2004 between the Corporation and the
Optionee, as such may be amended from time to time and (ii) shall include
the
declaration by the Corporation’s board of directors of the payment of a dividend
to the common stockholders of the Corporation as a result
of the Corporation
entering into a cash settlement in its litigation with IBM.
(3)
From the 10-Q
http://www.sec.gov/Archives/edgar/data/1102542/000110465905016503/a05-6736_110q.
htm#ConsolidatedBalanceSheets_100211
[they could run out of cash... see
introductory section where they say it outright - also note the precipitous drop
in assets]
...
[A liability of at least $893K
(related to share recission) which is not recorded on any balance
sheet]
...
[the Indian lawsuit, is apparently proceeding, and
could cost SCO upto ~$1500K aside from any lawyers
fees]
...
[From page 49-:]
Bonuses. The
executive officers received cash bonuses and commissions for their service
during the fiscal year ended October 31, 2004.
The amounts of the awards
were determined based upon the attainment of performance objectives by each
executive officer relating to (i)
the operating results of our UNIX division,
(ii) management of the SCO Litigation and (iii) other objectives related to
simplifying our capital
structure.
[yes, profitably doesn't
enter into it, and the executives all paid them selves bonus varying from
$20,000 to $51,804]
...
A bonus under the Bonus
Program may only be paid for any quarter of fiscal year 2005 if our company
meets specific revenue and
operating performance objectives for such
quarter. If these two performance objectives are satisfied, bonuses will be
paid and additional
bonuses may be earned if executive officers satisfy certain
specified personal objectives. These personal objectives are established by
the
Compensation Committee for Mr. McBride, our President and Chief Executive
Officer, and by Mr. McBride for the other executive officers.
[yes you
read the right, profitably apparently isn't required to score high in 2005 bonus
plan]
[the amounts of potential bonuses vary from $116,000 for Mr
Tibbits, to up to to $371,000 for Darl McBride][ Reply to This | # ]
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Authored by: Anonymous on Friday, April 15 2005 @ 01:23 AM EDT |
They will file a last minute memo or motion on April 20th,
For example, a reply in support of SCO's proposed schedule or something along
those lines...
And give IBM and the court, the choice of discussing it without proper
preparation, or adjourning the hearing (which they want anyway)[ Reply to This | # ]
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Authored by: Anonymous on Friday, April 15 2005 @ 01:26 AM EDT |
Just a guess: Kimball made his mind up already to what extent SCO will be
allowed to Amend and it is either not at all or very largely through subsequent
Amendments. [ Reply to This | # ]
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Authored by: Anonymous on Friday, April 15 2005 @ 01:27 AM EDT |
Look at the date of this order - April 13th
Look at the date of their 10-Q (it's in the document and signature blocks) -
April 14th
Their 10-Q clearly says the adjournment motion regarding the April 21st hearing,
is still pending.... truth is, it wasn't at the time their 10-Q was filed.
[ Reply to This | # ]
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Authored by: rsteinmetz70112 on Friday, April 15 2005 @ 01:36 AM EDT |
Who is planning ot go?
---
Rsteinmetz
"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk[ Reply to This | # ]
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Authored by: Anonymous on Friday, April 15 2005 @ 01:53 AM EDT |
This would be the second time Kimball has denied a SCO motion without waiting
for IBM.[ Reply to This | # ]
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Authored by: Anonymous on Friday, April 15 2005 @ 01:55 AM EDT |
Normally at this point the writing is on the wall, and it would be time for SCO
to settle this matter. But in this case they have nothing to settle with,
having
made the classic "Don't bet the company on a lawsuit" mistake from the
"Ten things never to do as CEO" book.
J [ Reply to This | # ]
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Authored by: marbux on Friday, April 15 2005 @ 01:57 AM EDT |
I've read pessimistic 10-Qs before, but SCOXe's latest reads like a narrative
description of a sinking ship. From the SCO 10-Q filing:
We continue to
pursue our SCO Litigation and believe very strongly in the merits of our cases.
In our action against IBM, we seek damages for claims generally relating to our
allegation that IBM has inappropriately used and distributed our UNIX source
code and derivative works in connection with its efforts to promote the Linux
operating system. IBM has responded to our claims and brought counterclaims
against us asserting generally that we do not have the right to assert claims
based on our ownership of UNIX intellectual property against IBM or others in
the Linux market. Discovery is continuing in the case, and several motions are
currently pending before the court. If we do not prevail in our action against
IBM, or if IBM is successful in its counterclaims against us, our business and
results of operations would be materially harmed and we may not be able to
continue in business. The litigation with IBM and others will be costly,
and our costs for legal fees have been and will continue to be substantial and
may exceed our capital resources. Additionally, the market price of our common
stock may be negatively affected as a result of developments in our legal action
against IBM that may be, or may be perceived to be, adverse to us.
As a
result of our SCO Litigation and our other SCOsource initiatives, several
participants in the Linux industry and others affiliated with IBM or sympathetic
to the Linux movement have taken actions attempting to negatively affect our
business and our SCOsource efforts. Linux proponents have taken a broad range
of actions against us, including, for example, attempting to influence
participants in the markets in which we sell our products to reduce or eliminate
the amount of our products and services they purchase from us. We expect that
similar efforts likely will continue. There is a risk that participants in our
marketplace will negatively view our action against IBM, Novell, DaimlerChrysler
and AutoZone and our other SCOsource initiatives, and we may lose support from
such participants. Any of the foregoing could adversely affect our position in
the marketplace, our results of operations and our stock price and our
ability to stay in business.
Might we remind who threw the
first punch?--- Retired lawyer [ Reply to This | # ]
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- Broad range of actions... - Authored by: Ed L. on Friday, April 15 2005 @ 02:21 AM EDT
- Missing risk factors? - Authored by: Anonymous on Friday, April 15 2005 @ 02:24 AM EDT
- straight out lies! - Authored by: meshuggeneh on Friday, April 15 2005 @ 03:01 AM EDT
- This was will be over in 7 months. - Authored by: Anonymous on Friday, April 15 2005 @ 03:07 AM EDT
- The Titanic had a better prospect ... - Authored by: rsteinmetz70112 on Friday, April 15 2005 @ 03:35 AM EDT
- SCOXe says it may go out of business - Authored by: Anonymous on Friday, April 15 2005 @ 04:10 AM EDT
- serves them rigth for sueing their own customers. - Authored by: Franki on Friday, April 15 2005 @ 04:55 AM EDT
- SCOXe says it may go out of business - Authored by: Rasyr on Friday, April 15 2005 @ 06:55 AM EDT
- Might we remind who threw the first punch? - Authored by: Tufty on Friday, April 15 2005 @ 11:04 AM EDT
- This is nothing new - Authored by: Anonymous on Friday, April 15 2005 @ 01:40 PM EDT
- SCOXe says it may go out of business - Authored by: Anonymous on Friday, April 15 2005 @ 05:19 PM EDT
- SCOXe says it may go out of business - Authored by: moosie on Saturday, April 16 2005 @ 01:13 AM EDT
- SCOXe says it may go out of business - Authored by: Anonymous on Sunday, April 17 2005 @ 01:49 AM EDT
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Authored by: jmc on Friday, April 15 2005 @ 01:57 AM EDT |
Why is David Marriott omitted from the list of recipients of the order?
Not the first time either.[ Reply to This | # ]
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Authored by: TheBlueSkyRanger on Friday, April 15 2005 @ 02:11 AM EDT |
Hey, everybody!
IANAL. In fact, I think my question will prove that. ;-)
I am not very familiar with things covered under the Freedom Of Information Act.
While I look forward to seeing the transcripts from the trial, I'm wondering
about something more. Will the court record the proceedings on audio tape, and
if so, is there a way to get a copy and listen to how things went? I would love
to hear IBM's lawyers grind SCO down as a play by play instead of just the box
scores, if you know what I mean.
Dobre utka,
The Blue Sky Ranger
"Check out my new weapon. It's the weapon of choice."
--Fatboy Slim[ Reply to This | # ]
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Authored by: RedBarchetta on Friday, April 15 2005 @ 02:50 AM EDT |
From SCO's 10Q:
"[..] There is a risk that participants
in our marketplace will negatively view our action against IBM, Novell,
DaimlerChrysler and AutoZone and our other SCOsource initiatives, and we may
lose support from such participants. [..]"
There's a risk?
You don't say?
Here's some free insight: you are the pariah of
the high-tech industry. You can't even mention your licensees by name for fear
of hurting their business.
The golden parachutes seem to be coming
along nicely, though. There's nothing like profiting from a sinking company, eh
boys?
The executives at SCOXE have mostly avoided the age-old crime
of selling stock inflated by pumping (although this is currently in question).
Instead, they are draining the corporate coffers by concocting bogus bonus
programs. It's the latest scam by dishonest CEO's; enrich yourself in full
sight of helpless investors, claiming, "the board approved it." Fortunately,
that's not a very good defense.
--- Collaborative efforts
synergise. [ Reply to This | # ]
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Authored by: Specced on Friday, April 15 2005 @ 04:31 AM EDT |
IANAL, so here's my question to the experienced ones among you:
Now
being fully advised, the court renders the following Order.
The
court declines to adjourn the hearing. Accordingly, IT IS HEREBY ORDERED that
SCO's Ex Parte Motion to Adjourn the April 21, 2005 Argument on SCO's Motion to
Amend Its Complaint is DENIED.
Is it just the impression on me or does
this language indeed come over as particularly short and blunt? Given that the
1st and 3rd sentences are just formalities, judge Kimball reference to SCO's
motion amounts to a whopping 7 words. No reasoning whatsoever, either. To me,
the judge truly feels rather fed up.
[ Reply to This | # ]
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Authored by: DBLR on Friday, April 15 2005 @ 04:45 AM EDT |
Please use link code to make your links clickable:
For example <a href="http://www.example.com"> Link Text
</a>
Set the Post Mode "HTML Formatted".
Charles
---
"Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is
a well-armed lamb contesting the vote."
Benjamin Franklin.
[ Reply to This | # ]
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- GPL enforced in German Court - Authored by: Anonymous on Friday, April 15 2005 @ 07:34 AM EDT
- Oh dear! - Authored by: kinrite on Friday, April 15 2005 @ 08:42 AM EDT
- Oh dear! - Authored by: Tufty on Friday, April 15 2005 @ 11:10 AM EDT
- Oh dear! - Authored by: Anonymous on Friday, April 15 2005 @ 11:19 AM EDT
- Andrew Orlowski - Authored by: Anonymous on Friday, April 15 2005 @ 12:06 PM EDT
- It's academic - Authored by: so23 on Friday, April 15 2005 @ 08:55 PM EDT
- I risk flames... - Authored by: swengr on Friday, April 15 2005 @ 11:17 PM EDT
- Oh dear! - Authored by: jkondis on Saturday, April 16 2005 @ 01:32 AM EDT
- Shirky: Sun's Quasi-Open Source Model - Authored by: thinman on Friday, April 15 2005 @ 09:28 AM EDT
- OT-But sorta on... Appearing before Judge Kimball. - Authored by: Anonymous on Friday, April 15 2005 @ 11:19 AM EDT
- "Linux keeping Spanish shelves stocked" - Authored by: Anonymous on Friday, April 15 2005 @ 01:46 PM EDT
- Software patent bites in the UK - Authored by: Chris Lingard on Friday, April 15 2005 @ 01:47 PM EDT
- South African IRS goes with SuSE - Authored by: Anonymous on Friday, April 15 2005 @ 02:05 PM EDT
- Direct links to news stories - Authored by: Anonymous on Friday, April 15 2005 @ 02:42 PM EDT
- Computer Business Review article on Groklaw & DMcB ramblings - Authored by: gumnos on Friday, April 15 2005 @ 02:45 PM EDT
- PJ has written an article for CIO Today.err today. - Authored by: TAZ6416 on Friday, April 15 2005 @ 02:57 PM EDT
- Microsoft innovation at its best - copies KDE feature and OS Tiger - Authored by: clark_kent on Friday, April 15 2005 @ 02:58 PM EDT
- Gnome too. - Authored by: Anonymous on Friday, April 15 2005 @ 03:58 PM EDT
- SCO to Groklaw's PJ: Who Are You? - Authored by: thinman on Friday, April 15 2005 @ 04:26 PM EDT
- CBROnline Article blames SCO's woes on PJ... - Authored by: inimicus on Friday, April 15 2005 @ 05:12 PM EDT
- European Software Patents Directive: European Parliament has Three Months From Today - Authored by: Simon G Best on Friday, April 15 2005 @ 05:16 PM EDT
- OT- Off Topic - Authored by: Anonymous on Friday, April 15 2005 @ 07:06 PM EDT
- OT- Off Topic - Authored by: Anonymous on Friday, April 15 2005 @ 08:38 PM EDT
- OT- Off Topic - Authored by: NastyGuns on Friday, April 15 2005 @ 09:14 PM EDT
- PJ is Darl's Excuse. - Authored by: Anonymous on Friday, April 15 2005 @ 10:26 PM EDT
- My response to Baleen O'Garish - Authored by: rjamestaylor on Saturday, April 16 2005 @ 02:17 AM EDT
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Authored by: fudisbad on Friday, April 15 2005 @ 05:17 AM EDT |
While reading the 10-Q, I was thinking "this sounds familiar". So I asked
OpenOffice.org to compare the Risk Factors section of the two documents. There
were a grand total of 32 changes in those 10 pages.
I'll post a teaser (the
first section), since the whole lot is too long (new stuff underlined, deleted
stuff struck out). You might want to open my
analysis of this particular bit of the 10-K in a new
tab.
Risk Factors
We do not have a history of
profitable operations.
Our fiscal year ended October 31, 2003 was the
first full year we were profitable in our operating history. Our profitability
in fiscal year 2003 resulted primarily from our SCOsource licensing initiatives.
For fiscal year 2004, we incurred a net loss from operations of $28,573,000
and our accumulated deficit as of October 31, 2004 was $224,216,000. For
the first quarter of fiscal year 2005 we incurred a net loss from operations of
$3,409,000 and had an accumulated deficit of $227,177,000.
If we do not receive SCOsource licensing revenue in future quarters and
our revenue from the sale of our UNIX products and services continues to
decline, we will need to further reduce operating expenses to generate positive
cash flow. We may not be able to further reduce operating expenses without
damaging our ability to support our existing UNIX business. Additionally, we
may not be able to achieve profitability through additional cost-cutting
actions.
If our revenue from the sale of our UNIX products and
services continues to decline, we will need to further reduce operating expenses
to generate positive cash flow. We may not be able to further reduce operating
expenses without damaging our ability to support our existing UNIX business.
Additionally, we may not be able to achieve profitability through additional
cost-cutting actions.
Our UNIX products and services revenue has
declined over the last several years primarily as a result of increased
competition from alternative operating systems, particularly Linux. In our
quarterly results of operations, we recognize revenue from agreements for
support and maintenance contracts and other long-term contracts that have been
previously invoiced and are included in deferred revenue. Our future UNIX
revenue may be adversely impacted and may continue to decline if we are unable
to replenish these deferred revenue balances with long-term maintenance and
support contracts or replace them with other sustainable revenue streams. If we
are unable to generate positive cash flow and profitable operations, our
operations will be adversely impacted.
Moving along, I notice the
following:
- The bit about Linux users adversely affecting their business
disappears.
- The bit about getting delisted also disappears.
- The "Our
Engagement Agreement with the Law Firms will require us to spend a significant
amount of cash during fiscal year 2005 and could harm our liquidity position."
gets its figures updated.
- The bit about recission gets reworded.
- The
rest is copied verbatim, apart from a few figure changes.
--- See my
bio for copyright details re: this post.
Darl McBride, show your evidence! [ Reply to This | # ]
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- smaller difference - Authored by: Anonymous on Friday, April 15 2005 @ 08:19 AM EDT
- Depends - Authored by: DMF on Friday, April 15 2005 @ 03:32 PM EDT
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Authored by: solman on Friday, April 15 2005 @ 05:46 AM EDT |
Does this order mean that Judge Kimball. and not Judge Wells, will make the
decision on whether and how to amend the schedule?
Isn't that escalation a victory of sorts?[ Reply to This | # ]
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Authored by: codswallop on Friday, April 15 2005 @ 06:08 AM EDT |
With all these motions, it's hard to figure out who's trying to do what and
why.
Why does SCO want to adjourn its motion?
My theory is that they woke up to a few unpleasant possibilities. If they amend
their claims, then IBM will amend their counterclaims. SCO will have to try to
amend soon, since they need the Monterey claims. However, they'd like to know
how IBM does with Judge Wells on the reconsideration motion and get as much
discovery in as possible before any IBM counterclaims change the shape of the
case.
Last time IBM tried for too much with their declaratory judgements. There's no
way they would repeat the mistake. Next time they'll attack smaller points that
are harder to defend. My favorites are attacks on SCO's interpretation of the
provisions of the AT&T agreements individually and as a matter of law. Since
this is an integrated contract with a clear side letter, they should be able to
make their claim entirely a matter of law. They don't need a ruling about what
the provisions mean. They can just ask for a ruling that they can't mean what
SCO says they do. Even if parol evidence was allowable concerning the exact
meaning of some provision, it can still be decided without it that certain
meanings are impossible because they conflict with clear language elsewhere
which is not subject to parol evidence.
They can then file a motion asking Judge Kimball to wave his ban on summary
judgement motions, because the discovery deadline will have been pushed forward
by discovery on the new claims and because there are no matters of fact in
dispute in the counterclaims in question.
IBM has a right to summary judgement, so his discretion shouldn't be unlimited,
but I don't know of any case law.
If IBM can get a ruling saying that SCO's reading of section 2.01 is wrong, they
will gut SCO's case. Judge Kimball's Liu argument would no longer apply.
Another obvious declaratory judgement claim would be that Amendment X means what
it says and IBM's license is irrevocable.
They would probably keep the existing 3 claims they had PSJ motions for, but
clean them up a bit. If they won the motions above, then there would be no bar
to summary judgement on the infingement claims, since the Gemisys decision would
be clearly on point. Of course, Judge Kimball might not let them file these.
These are more complicated and it's not completely obvious beyond argument that
no further discovery is needed, but if IBM won the two I proposed, it would be
hard to see what discovery could produce that would change anything.
Judge Kimball has declined to allow SCO to adjourn their own motion. It seems a
bit unusual to force a party to argue a motion they wish to adjourn. He could
have allowed them this point and still forced the hearing on the Palmisano and
scheduling order motions, so either he has some rulings he wants to make in this
area, or he thinks that the amended complaint motion affects the scheduling
order so much that there has to be a ruling on it for him to issue a new order,
or both. I'm betting both
---
IANAL This is not a legal opinion.
SCO is not a party to the APA.
Discovery relevance is to claims, not to sanity.[ Reply to This | # ]
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Authored by: WhiteFang on Friday, April 15 2005 @ 07:46 AM EDT |
This is the part of the order I found most interesting:
"
... the parties are hereby NOTIFIED that the court will also hear argument
regarding the parties' Proposed Scheduling Orders."
So, not
only did Judge Wells continue the hearing for the original two motions to be
decided, on his own he added the scheduling order conflict.
Yes
indeedy. The Honerable Judge Wells _is_ moving this case along. My guess is that
Judge Wells will basically follow IBM's scheduling order with tweaks to the
dates. i.e. I expect him to stretch out the dates a bit. But I believe that
IBM's demands for display of evidence by a fixed date to be will be
granted.
Just speculation on my part. YMMV
[ Reply to This | # ]
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Authored by: Steve Martin on Friday, April 15 2005 @ 09:14 AM EDT |
The Motion was dated April 11th, and Judge Kimball issued this order two days
later. Sure didn't take him long to make his decision, did it?
:)
---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports
Night"[ Reply to This | # ]
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Authored by: Thomas Downing on Friday, April 15 2005 @ 09:36 AM EDT |
IANAL....
Besides denying SCO's request to adjourn, it seems to me
that Judge Kimball is saying:
"Not only will you argue the amendment
issue, but seeing as how you are whining about the scheduling in general, you
will argue that as well, ready or not!"
I may be wrong, and probably am,
but I don't recall anything previously from the court on when or if there would
be oral argument on the new scheduling order. --- Thomas Downing
Principal Member Technical Staff
IPC Information Systems, Inc. [ Reply to This | # ]
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Authored by: Anonymous on Friday, April 15 2005 @ 10:28 AM EDT |
Just my WAG.
Scoxe knew their motion would be ignored by the court, because the motion was
filed too late. Scoxe would not want the court to seriously consider such a
motion - that could get scoxe into some trouble.
The motion was writen for the public, the is supposed to be picked up shills in
the media, who will have a hay-day with it.
- walterbyrd[ Reply to This | # ]
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Authored by: Anonymous on Friday, April 15 2005 @ 10:47 AM EDT |
If novell win the copyright case against SCO, would that mean when SCO say in
their financial filings that SCO owns the copyrights and novell are liers, that
SCO falsified its financial filings by giving misleading information?[ Reply to This | # ]
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Authored by: dcs on Friday, April 15 2005 @ 12:00 PM EDT |
PJ, I was astonished to find out that the judge will also hear oral arguments on
the scheduling orders. Was this planned? It looks like news to me:
" the parties are hereby NOTIFIED that the court will also hear argument
regarding the parties' Proposed Scheduling Orders."
---
Daniel C. Sobral
[ Reply to This | # ]
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Authored by: Anonymous on Friday, April 15 2005 @ 12:44 PM EDT |
If memory serves, Boies was actually fielding questions at one of the SCOX
conference calls. I don't see his name on the list of lawyers at the bottom of
Kimball's order. Is he not playing as big a role as I thought?
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- Where's Boies? - Authored by: Anonymous on Friday, April 15 2005 @ 01:03 PM EDT
- Where's Boies? - Authored by: Anonymous on Friday, April 15 2005 @ 03:51 PM EDT
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Authored by: greyhat on Friday, April 15 2005 @ 01:04 PM EDT |
http://www.internetnews.com/dev-news/article.php/3497776
The article has a few interesting quotes from PJ and the SCO players about their
recent conference call. I guess SCO is finally realizing that they can't attack
an anonymous individual... maybe their misadventures with Linux helped them
understand that. So like with Linux, they need to put a face on her, and attack
that. Now... where are we going to find a face at this time of night?
Overlooking the fact that we live in a time when the head of a company can admit
to the equivalent of stalking an individual at a conference, I couldn't help but
be amused by this quote:
McBride said that once the company has all its facts complete, it will release
PJ's identity "at a certain point in time."
Sounds familiar. Looks like PJ will be exposed around the same time SCO
identifies infringing code! I hope we all live that long...
---
"Obviously Linux owes its heritage to UNIX, but not its code. We would not, nor
will not, make such a claim."
-- Darl McBride to Linux Journal, August 28, 2002[ Reply to This | # ]
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Authored by: Anonymous on Friday, April 15 2005 @ 01:26 PM EDT |
check this out
http://www.betanews.com/article/Does_Open_Source_Closed_Mind/1113572174[ Reply to This | # ]
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Authored by: Anonymous on Friday, April 15 2005 @ 03:22 PM EDT |
And in record time too!
Maybe the court has finally returned from recess.[ Reply to This | # ]
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Authored by: DMF on Friday, April 15 2005 @ 03:43 PM EDT |
• ... our belief that we will have sufficient cash resources to fund our
operations through October 31, 2005.
• Our belief that certain legal actions to which we are a party will not have a
material adverse effect on us.
----
First, they drop dead in October. Yet they're still dragging on the process?
Prepare for a bankruptcy filing late in the year. Spinning the blame has
already started (hint: it's Linux and IBM).
Second, even if the cost of litigation is factored out, that they will survive
all claims and counterclaims is clearly a pipe dream - especially without cash
reserves - and is roundly beaten to death in the Risks section.
I wonder if this will be the first significant use of Sarbanes-Oxley?
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Authored by: gnuadam on Friday, April 15 2005 @ 05:57 PM EDT |
I'd just like to point out that Slashdot just posted a link to this story.
Reading the forums there and here, there's a world of difference.
Thanks, PJ, for making a place safe for intelligent discussion. It has really
helped all around.[ Reply to This | # ]
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Authored by: heretic on Saturday, April 16 2005 @ 12:45 AM EDT |
Some new words and phrases I thought of ;-) [humour]
Darlian
=> All things Darl
Darlian secrets => So
secret that only a Darlian knows them
Darlian mog => A kind
of faithful Darlian lap-dog that knows Darlian secrets
Darlian stooges
=> Followers of Darlian
Darlian IP => Imaginary
inventions and fanciful ideas
Darlian ownership => Someone else
property, but a Darlian wants it
Darlian logic => Twisted and
often incomprehensible
Darlian quotes => Often funny to
ordinary people
Darlian truths => Statements of Darlian logic
based on Darlian secrets
Darlian litigation => Litigation based
upon Darlian secrets, truths and IP
Darlian business model => Applying
Darlian ownership, truths, logic and litigation to an ordinary business
Darlian motion => The seemingly random actions performed by a
Darlian CEO immersed in a fluid crisis
heretic[ Reply to This | # ]
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Authored by: dmarker on Saturday, April 16 2005 @ 02:50 AM EDT |
In response to MOG's latest anticipated LBW posting.
(PS I haven't posted this directly to LBW because it only feeds MOG ego &
hit counter and won't in any way change how MOG behaves or carries on in regard
to tSCOg vs IBM).
To Maureen O'Gara,
Your 'story' below is a good example of misdirecting attention from the facts of
the tSCOg vs IBM case onto an irrelevant argument to do with Groklaw ownership
because the salient facts are so damning to tSCOg. You appear to have a 'more
than' journalistic desire to help Darl McBride achieve such misdirection.
Here is my analysis of your 'story'.
>> Maureen O'Gara writes: SCO CEO Darl McBride claimed
>> during the company's Q1 earnings report Wednesday
>> evening that Pamela Jones, a.k.a. "PJ," the now-famous,
>> albeit shadowy, voice of Groklaw, the web site that
>> follows the SCO v IBM suit and has become a festering
>> thorn in SCO's side, is "not who she says she is."
[the now-famous, albeit shadowy] - This is not a fact just a biased amd
emotive opinion.
[and has become a festering thorn in SCO's side] - agreed!, I am sure this point
is perceived by all as factual hence the McBride outbursts and your written
backing up of them. In fact this rare bit of insight from you underscores much
of the mess tSCOg is in and your own resentful hostility to Groklaw and PJ.
>> He didn't say who she is - if she is a she - but he did
>> say that SCO has been "digging" to discover the true
>> identity of its nemesis and claimed that, from what it
>> has learned so far, the situation is "much different
>> than advertised" and that "all is not as it appears."
[He didn't say who she is] - and amusingly he tellingly doesn't say who she
isn't. Pamela wrote a letter to the editor at ZDNet aimed at Darl in March 2004
telling him who she was and what she did. Just how much plainer can it get
without PJ going ridiculously overboard just to counter McBride's identity
'slurs', backed by your writings.
http://news.zdnet.com/2100-9595_22-5170485.html
>> He basically challenged the press to question Groklaw's
>> credibility and unmask whoever or whatever is behind it.
>> McBride of course has a bone to pick, a big bone, and has
>> suffered Groklaw and its rabble rousing silently up until
>> now. He blames the blog for ruining his SCOsource
>> licensing scheme.
>> According to what he said, Groklaw's "reason for being
>> is to destroy SCO" - a statement even Groklaw would
>> readily agree with, we would think. But McBride claimed
>> that its tactics are "biased," its commentary is
"hype,"
>> and that it's guilty of "misleading" its readers and
>> "spinning" the facts.
[question Groklaw's credibility and unmask whoever or whatever is behind it] -
allowing that Groklaw's prime
stated role is to publish all the legal documents surrounding tSCOg lawsuits esp
in relation to tSCOg's
attempts to harm Linux and FOSS, how can questioning the credibility of
published court documents mean anything except posturing bluster ?. Questioning
"who is behind it" offers nothing that diminishes the effect and
content of the legal documents. Is it not surprising that many people also go
to Groklaw to register their support and add their feelings about what the legal
information tells them.
["reason for being is to destroy SCO"] - I don't see Groklaw stating
that as a goal, Where ?. It is more accurate and somewhat more honest to say
that Groklaw is out to highlight the deception and dishonest antics in the tSCOg
vs IBM case. If anyone is out to destroy tSCOg it is the management of
the company itself and I am sure, there are some people in the FOSS community
who hate what tSCOg has come to
represent. But Groklaw is *not* FOSS.
[a statement even Groklaw would readily agree with] - Not true. Groklaw is not
out to destroy tSCOg, it is out to highlight all the weaknesses in the lawsuit
between tSCOg and IBM plus others. Groklaw has no need to destroy tSCOg, the
management of the company is doing that by itself for whatever agenda it is
working to.
>> When asked by a reporter if there was connection between
>> Groklaw and IBM, Groklaw's obvious beneficiary, McBride
>> ducked the question saying, "I don't want to go to the
>> IBM card."
This bit of journalism is a way of implying something for which neither you nor
McBride have any evidence of any kind. In fact, in the above linked letter from
Pamela Jones she states quite clearly that IBM was not behind Groklaw & goes
into detail explaining so. So on this point either you and or McBride are
implying PJ is a liar except you won't say so because you know it’s not true and
there is no shred of evidence to show it. Implying it is so isn't very
factual.
>> Whatever you think of his politics, McBride may have a
>> point or two. How come such an influence peddler is so
>> mysterious?
The influence of Groklaw is because a lot of people including many respected and
influential individuals, are so horrified by tSCOg's antics and actions, that
they have flocked to Groklaw to better understand the legal activity and
manoeuvring and to also assist in debunking the many distortions and deceptions
they see being done by tSCOg in pursuit of their lawsuits. AFAIK no one has ever
directly presented any evidence (or claim) that Pamela Jones has told a lie
(about anything including who she is) but many people have pointed out repeated
lies and distortions put forward by representatives of tSCOg. It is these that
keep swelling the proactive numbers at sites like Groklaw. These types of
unfounded accusations have made tSCOg not just despised, but the laughing stock
in the industry.
>> Groklaw came into being two years ago around the time
>> SCO sued IBM for allegedly stealing its Unix code and
>> putting it in Linux, which has won SCO the undying
>> enmity of the open source and free software communities.
Plus the enmity of a lot of normal IT people (such as my self, a senior IT
Architect), who are appalled at what tSCOg is doing and trying to pull off. I
will give my support to anyone of repute who has a means of exposing the
deceptions being carried out by tSCOg. This debunking of your article is one
very small contribution. Given an IT decision in which a tSCOg product was
involved, I would much rather deal with a company that I trust isn't going to
try to sue my employer, and who I believe has some minimal level of business
integrity. tSCOg just doesn't have it.
>> Groklaw pretty much sprang like the war goddess, Athena,
>> did - fully armed from the brow of Zeus, although its
>> author, according to what PJ has said, was supposedly
>> just a paralegal "trying to learn how to blog."
This is a somewhat pointless opinion. It seems you are
trying to imply that PJ & Groklaw started from day one
as a fully staffed & set up operation that was 'fully armed'. Any of the
long time followers of the tSCOg vs IBM case know full well (as you do too MOG)
that Groklaw started slowly and grew steadily as did tSCOg's abuse. Sure Groklaw
had to keep moving sites due to the massive (explosive) interest that tSCOg's
antics generated among people of the world. tSCOg started a fire that has become
an inferno but unlike any phoenix, tSCOg is unlikely to rise from the ashes.
tSCOg can expect to be burnt to smoke in a conflagration of its own creation.
>> In Groklaw's case that meant a fully formed and complete
>> open source philosophy. And because of the cause célèbre
>> it took up with such fervour, nobody in the open source
>> community - where you usually have to show your pedigree
>> papers at the door to get in - seemed to question its
>> antecedents...or purposes.
Opinion piece. What is your point ?. PJ added a new dimension by bringing in
her legal researching skills. She has triggered a great interest in the legal
aspects of software ownership. You appear to be carping at her overwhelming
success and just as ADT's Ken Brown tried to argue that Linus couldn't have
written Linux you are trying to use the same discredited tactic to argue that PJ
couldn't have created what Groklaw has become. The funny thing is that tSCOg
made Groklaw what it is, PJ was there for the ride. Your increasing attacks on
Groklaw and PJ tell us how resoundingly successful Groklaw is in exposing the
weaknesses of tSCOg's lawsuits.
>> Groklaw has no fixed address or phone number. The phone
>> numbers its left with people change as often as blonde
>> next door's hair color. Its only steady connection with
>> the outside world is virtual. Its domain is registered by
>> proxy, so whoever owns it is a secret.
Again, opinion that attempts to create false or distorted impressions. The
domain ownership is no more a secret that most others are in today's domain
climate. Domain info can be public but more & more sites are opting for
blocked access to their domain registry info and for good reason. Spammers 1st
target in the early days, was domain registry data. You are yet again taking
something irrelevant and trying to create a mystery around it.
>> The name PJ is apparently a nom de plume or, in this
>> case maybe it's a nom de guerre. According to one e-mail
>> interview, "I originally wanted to stay anonymous.... I
>> chose PJ, because it could be anyone, either sex, any
>> nationality, anyone and no one in particular."
This is your attempt to distort a few words (note the ... space in your 'quote')
attributed to PJ where she talked about establishing a web handle and you are
trying to claim she was referring to Pamela Jones (herself) rather
than the handle "PJ". This is a devious attempt to create a mystery
where there isn't one and again you deliberately ignore the open letter Pamela
sent out a year ago where she stated who she was and what she does. But, you
want to ignore the facts because they get in the way of your attempts to create
your required fiction.
>> PJ declines to come out from behind the Groklaw web site.
>> When she was having some beef or another with SYS-CON
>> Media and she was invited to come on Internet television,
>> she demurred saying she was "shy." Odd, she doesn't write
>> like she's shy.
So what does this prove. Does it mean that PJ knows what she is best at in
Groklaw for and is sticking to it rather than get waylaid by self glory as some
kind of 'Joan-of-Arc' celebrity ?. Perhaps too, PJ is becoming aware of what
some journalistic thugs with malicious and highly questionable motives can try
to do ?. When I read articles like you have written about PJ, my advice to her
is keep away from that type of person, I smell evil.
>> Only one person has ever claimed to have met her and
>> described her as a fortysomething with reddish-blonde
>> hair. (Since I have some skin in the game because of
>> the way I'm knocked around regularly by Groklaw, I've
>> been out PJ hunting too and I've yet to come upon this
>> fortyish reddish-blonde creature, but I've certainly
>> met some interesting people along the way.)
Maureen, If you feel knocked around by what people at Groklaw say about you, you
should read the feedback that follows your articles at LBW or perhaps read the
common opinions of you posted in Yahoo Finance SCOXE board. At Groklaw, we are
polite and perhaps kind by comparison. Has it occurred to you that the hostility
you engender, is of your own making. It seems to me you and tSCOg have a lot in
common on this matter.
>> The Groklaw masthead has changed over time from
>> identifying PJ as a "paralegal" to a "journalist with
>> a paralegal background." Well, nobody whatever their
>> political stripe would mistake Groklaw for journalism.
>> By definition, journalism is nominally "objective,"
>> even as practiced by Dan Rather. There is nothing
>> objective about what Groklaw says or the reaction it
>> gets. Opinion maybe, but not journalism.
A cheap and baseless shot. Here is a link to a lengthy bit of PJ journalism
that in quality and substance (IMHO) is vastly superior to your average
journalistic work including this very article I am debunking.
http://www.newsfactor.com/story.xhtml?story_id=03300000NBM6
PJ, stated quite clearly she started out as a paralegal. Today she writes as
well as researches. In time you will see more of her articles. There are a lot
of publications wanting her writing and ready to publish it. By the way, Groklaw
is a BLOG not a newsletter. Yet again you resort to a characteristic tactic of
distorting what is in order to serve your base points.
>> Nothing in the world is as black and white as Groklaw
>> paints the SCO v IBM case, despite all the opportunities
>> presented by SCO, a press agent's nightmare, unless
>> perhaps it's a cartoon or maybe a Tom Mix western.
>> PJ claims, "I never give legal opinions. That's reserved
>> for lawyers only, and I respect that line." But, judging
>> from Groklaw's commentary, this is one paralegal with no
>> qualms about trying the case and appropriating the job of
>> both the judge and the jury.
I challenge you to show a Groklaw post where PJ has given a legal opinion
without a qualifier. I am certain you will find lots where she has made comments
about what she is posting but certainly not prefixed with 'this is my legal
opinion'. Once again you distort the reality, PJ giving her personal opinions as
if she is giving them as legal opinions.
>> Groklaw ain't the result of a 40-hour week either, so
>> if PJ has a day job it's hard to figure where she gets
>> the time. Yet Groklaw has no visible means of support
>> unless we are to believe it's kept alive by PayPal
>> donations. Looks like a lot pricier operation than that.
It must be patently clear that Groklaw has a group of dedicated assistants who
have stepped forward to assist. I like many, am happy if I can be in that
category and so I do what I can. Your point ignores just how angry so many
people are about the barefaced dishonesty and offensive tactics of tSCOg. Do you
imagine that we will just sit back and not try to do something about it ?.
>> Which begs the question McBride ducked, "Cui bono?" Who
>> benefits?
>> Well, certainly IBM has - whether it has anything to do
>> with Groklaw or not.
>> Groklaw has certainly provided IBM with a soothing
>> sedative for those large accounts hesitating to adopt
>> Linux unless the thought of possible liability was
>> undercut.
>> Anyway, PJ responded in what seemed like minutes to
>> McBride's credibility challenge saying, "It's an honor
>> to be smeared by SCO...It puts me in the same company as
>> Linus, which is a wonderful place to be. I gather they
>> are threatening me and hope I'll be intimidated and
>> shut up."
>> PJ also claimed SCO has yet to pierce her veil. "I
>> have heard," she wrote, "SCO has been telling
>> journalists a lot of peculiar stories about who they
>> think I might be. One guess was that I was Eric Raymond,
>> with his lawyer wife whispering in his ear. Another guess
>> was that I am a composite of IBM lawyers. Another was...I
>> forget. It's too silly. They didn't get it right yet,
>> that I've heard."
>> Sounds like a serial killer taunting the cops to catch
>> him.
Him ?. Who is taunting who ?. IMHO you taunt many of us IT industry people
with some of the things you write as typified in this debunked article.
Summary.
1) A diatribe laced with personal attacks posing as 'journalism'.
2) PJ is Pamela Jones, a paralegal who has become a journalist. Pamela Jones
runs the Groklaw blog site with assistance from enthusiastic and committed
volunteers worldwide. Pamela is female - the name has to be your best clue !.
But who am I to tell you where to get a clue ?.
3) You are an offensive 'journalist' and I am happy to tell you so as per this
rebuttal. This is one of your typical
and characteristic 'attack' LBW articles.
4) The thing that really stands out in this article is that you know that most
of what you are saying is of a malicious nature and not true. The whole article
is an attempt to help direct attention from tSCOg's tactical blundering, to an
issue that might help blunt the sharpness of PJ's Groklaw.
Doug Marker
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