decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal


User Functions

Username:

Password:

Don't have an account yet? Sign up as a New User

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
Kimball Denies SCO's Ex Parte Motion to Adjourn
Friday, April 15 2005 @ 12:55 AM EDT

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.
ORDER REGARDING
APRIL 21, 2005 HEARING



Civil No. 2:03CV-0294 DAK

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]


  


Kimball Denies SCO's Ex Parte Motion to Adjourn | 380 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Kimball Denies SCO
Authored by: Anonymous on Friday, April 15 2005 @ 01:10 AM EDT
This tastes better than the rhetoric.

[ Reply to This | # ]

Kimball Denies SCO's Ex Parte Motion to Adjourn
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 | # ]

  • 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
Corrections Here Please
Authored by: jimbudler on Friday, April 15 2005 @ 01:18 AM EDT
So PJ can find them...

---
Jim Budler

[ Reply to This | # ]

Some highlights from the 10-Q
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 | # ]

If SCO is true to form
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 | # ]

Kimball Denies SCO's Ex Parte Motion to Adjourn
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 | # ]

Oops - a "mistake" in their 10-Q
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 | # ]

Wednesday ought to be interesting.
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 | # ]

Kimball Denies SCO's Ex Parte Motion to Adjourn
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 | # ]

Nornally time to settle
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 | # ]

SCOXe says it may go out of business
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 | # ]

Out of curiosity
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 | # ]

    Switching Off The Books On Tape If Possible
    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 | # ]

    Risk? RISK?!
    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 | # ]

    Blunt language?
    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 | # ]

    OT- Off Topic
    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 | # ]

    Copy and Paste 10-Q
    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 | # ]

    • 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
    Kimball Denies SCO's Ex Parte Motion to Adjourn
    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 | # ]

    What's going on?!
    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 | # ]

    What I found most interesting
    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 | # ]

    That didn't take long.
    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 | # ]

    Ruling sending another message?
    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 | # ]

    Scoxe's motion was just a PR stunt
    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 | # ]

    SCO still says Novell own nothing
    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 | # ]

    PJ, the schedules!
    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 | # ]

    Where's Boies?
    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?

    [ Reply to This | # ]

    SCO's going to find PJ out!
    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 | # ]

    Didio is crying over at betanews!
    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 | # ]

    Haaaa haa haa ha ha ha ha!
    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 | # ]

    10Q: Always read the last items in a list
    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?

    [ Reply to This | # ]

    Kimball Denies SCO's Ex Parte Motion to Adjourn
    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 | # ]

    Kimball Denies SCO's Ex Parte Motion to Adjourn
    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 | # ]

    An open letter to MOG from a Groklaw follower ...
    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

    [ Reply to This | # ]

    Groklaw © Copyright 2003-2013 Pamela Jones.
    All trademarks and copyrights on this page are owned by their respective owners.
    Comments are owned by the individual posters.

    PJ's articles are licensed under a Creative Commons License. ( Details )