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Novell Hires Another Lawyer for the Team -- Guess What He's Good At?
Thursday, June 09 2005 @ 09:40 PM EDT

Now this is interesting. Novell has added a new lawyer to the team handling SCO v. Novell. Here's [PDF] the pro hac vice Order of Admission. His name is Kenneth Brakebill, and guess what he is an expert in? No. Guess.

Here's a hint: It's a paper he wrote, called "The Application Of Securities Laws In Cyberspace: Jurisdictional And Regulatory Problems Posed By Internet Securities Transactions" [PDF]. His article is on page 5. Here's the overview:

Analyzes the international jurisdictional problems created by securities transactions over the Internet. Considers similar problems regarding the interface between state and federal jurisdiction.

And here's a paragraph, to give you an idea of what the overview is talking about:

The SEC has now stated that it will be very aggressive in asserting broad jurisdiction over cyberspace activities. A US court can exert subject matter jurisdiction if the defendant commits significant acts in the US or if the defendant’s actions cause significant adverse effects in the US, so courts must formulate new rules on the “location” of conduct to apply to cyberspace activities. If, for example, someone posts fraudulent statements on a Website in a foreign country, but those statements are accessed by a US investor, the court must determine where the fraudulent conduct “occurred” — at the situs of the Website or the location of the person who reads the material. The effects prong of the jurisdictional test may also create problems. The court must determine whether the mere fact that cyberspace messages from anywhere in the world can be accessed and read in the US is a sufficient effect to support jurisdiction.

The paper was written some time ago, so I don't know how aggressive the SEC is currently, or how aggressive we can expect it to be going forward. But if you wanted to ask a lawyer what happens if a company makes untrue statements over the Internet and some poor slob buys stock based on the false claims, he's your man. Here's a firm bio with his picture, and another, Findlaw, bio, and as you can see, he's a litigator.

I don't know why Novell has hired him. But I know one thing. You don't hire a litigator to write your corporate bylaws.

Litigators are not like other people. They're not even like other lawyers. It's a breed apart. Litigators live and breathe to fight, and they like to win. It's like chess players. They have to love the moment they say, "check" to be willing to spend so much time plotting and planning and strategizing.

So, Novell has hired a litigator.

I think if you go to Pacer and search for Novell, and then compare it to any other company, you'll find they are not afraid of litigation, and they are very aggressive about protecting their rights. At least, that is my impression, after seeing page after page of cases as far as the eye can see. Now, I don't know why they hired a new lawyer with "extensive trial experience" right now. Maybe it's just because they anticipate an appeal, no matter which way things go, or maybe they are thinking of putting SCO through an experience, a taste of their own medicine. Who knows? Time will tell, but it does look like they have found a particularly good litigation attorney. From the first bio:

Mr. Brakebill has spent a significant amount of his time representing technology company clients in industries such as semiconductor chip design, semiconductor chip manufacturing, computer networking and enterprise infrastructure software.  Clients have included Altera Corporation, BEA Systems and Novellus Systems.  These representations have included patent infringement actions, copyright-related matters, breach of contract actions, and cases involving tortious interference with contract and unfair business practices claims.  Recently, Mr. Brakebill has also represented public companies in internal investigations and SEC investigations.

Mr. Brakebill has been involved in a number of trials representing plaintiffs and defendants in federal and state court.  Recently, he participated in a trial in the United State District Court, Northern District of California, which resulted in a unanimous jury verdict for the firm’s client, a $36 million judgment and a permanent injunction order.  In that case, the jury found that the defendant infringed the semiconductor chip designs of the firm’s client and tortiously interfered with its software license agreements.  Mr. Brakebill’s other recent trial work has included the successful resolution of a patent infringement action between two semiconductor chip designers in the Northern District of California; and a $5 million damages award on behalf of a semiconductor equipment manufacturer in a breach of contract action against a competitor.

From the second bio:

Mr. Brakebill has spent a signficant amount of his time representing technology company clients in patent and copyright-related matters and in actions involving breach of contract, tortious interference with contract and unfair business practices claims. His recent trial work has involved the procurement of a unanimous jury verdict and permanent injunction in the Northern District of California in a dispute involving infringement of semiconductor designs and tortious interference with software license agreements; the successful resolution of a patent dispute in the Northern District of California; and a breach of contract arbitration between semiconductor equipment manufacturers in San Francisco.

Now, mind you, I have no inside info. I really mean it when I say, I have no idea why they hired a new man now. But they have, and in my dreams . . .well . . . I bet you can guess.


  


Novell Hires Another Lawyer for the Team -- Guess What He's Good At? | 144 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Novell Hires Another Lawyer for the Team -- Guess What He's Good At?
Authored by: Anonymous on Thursday, June 09 2005 @ 09:54 PM EDT
It would be great to see someone go on the offensive with SCO rather than the
defensive. A taste of their own medicine, in deed!

[ Reply to This | # ]

Novell Hires Another Lawyer for the Team -- Guess What He's Good At?
Authored by: Stumbles on Thursday, June 09 2005 @ 09:55 PM EDT
Let's see, how many statements has Darl and crew made that any
reasonable person would say, hogwash? We do know they have made,
ahem, slightly inaccurate statements in Germany and wasn't there some
rumlings in Australia? I suspect Mr. McBride's words will now be
haunting him.

---
You can tune a piano but you can't tune a fish.

[ Reply to This | # ]

Off Topic Threads Here
Authored by: nerd6 on Thursday, June 09 2005 @ 10:06 PM EDT
Let's kick it off with:

Something's Amiss in the Linux Community

[ Reply to This | # ]

Corrections
Authored by: stevem on Thursday, June 09 2005 @ 10:07 PM EDT
" taste of their own medicine. Why knows? Time will tell,"

presumably should be "Who knows"


- SteveM

[ Reply to This | # ]

Check?
Authored by: Anonymous on Thursday, June 09 2005 @ 10:17 PM EDT
They have to love the moment they say, "check" to be willing to spend so much time plotting and planning and strategizing.

You say check when you put the opponent's king in danger.

You say "checkmate" when there's no way they can remove the king from danger (which is, of course, when you actually *win*).

You can put them in check constantly in a game of chess and still lose from some other oversight.

Now, it's just me being a chess-playing pedant, but I'd have said "checkmate" instead of "check" in that example :) The best games are where you go straight to "checkmate" and never have to put them in check at all. It's so sweet to sneak it up on them when they never dreamed what you were really plotting and have it all fall in on them. Doubly so when you lure them into it by giving up lots of high-value pieces (like the queen) first so that their greed keeps them distracted as they walk blindly into the trap...

[ Reply to This | # ]

But which case?
Authored by: Anonymous on Thursday, June 09 2005 @ 10:18 PM EDT
Novell is going after the Great Criminal Monopolist for yet another case of
aggravated monopolistic battery. Surely this is related to that, not the
SCO-clown sideshow.

[ Reply to This | # ]

Fights?
Authored by: Observer on Thursday, June 09 2005 @ 11:08 PM EDT
Was it Novell that said, "If anyone tries to assert patent claims against Linux, we will come after them with our patent portfolio"? Actually, I believe that was IBM, however they may be expecting some fights.

---
The Observer

[ Reply to This | # ]

Question for PJ
Authored by: Anonymous on Thursday, June 09 2005 @ 11:10 PM EDT
You say "I think if you go to Pacer and search for Novell, and then compare
it to any other company, you'll find they are not afraid of litigation, and they
are very aggressive about protecting their rights. At least, that is my
impression, after seeing page after page of cases as far as the eye can
see."

Now, are most of these cases during the Noorda era? Or is the current mgmt.
litigating at a comparable clip? Just curious as to how aggressive the current
mgmt. is compared to the old. I would not expect them a priori to be litigating
at the same rate.

[ Reply to This | # ]

Novell Hires Another Lawyer for the Team -- Guess What He's Good At?
Authored by: Anonymous on Thursday, June 09 2005 @ 11:43 PM EDT
I happen to like Brakebill's e-mail address: ...@MOFO.com

[ Reply to This | # ]

Novell Hires Another Lawyer for the Team -- Guess What He's Good At?
Authored by: daavery on Friday, June 10 2005 @ 12:15 AM EDT
since MoFo has been the defendants lawyers since this case started this is
really more "MoFo starts hauling out their big guns". MoFo has a huge
team of litigators and experts on staff

[ Reply to This | # ]

It's not for the lack of evidence
Authored by: NZheretic on Friday, June 10 2005 @ 01:16 AM EDT
One Complaint to the Securities Exchange Commission

[ Reply to This | # ]

Novell Hires Another Lawyer for the Team -- Guess What He's Good At?
Authored by: pooky on Friday, June 10 2005 @ 02:06 AM EDT
This seems like an intersting move since Novell currently has a motion to
dismiss SCO's case before the court. Would this not suggest they might be
planning to turn around and sue SCO?

Hmmm....

-pooky

---
Many Bothans died to bring us this information.

[ Reply to This | # ]

Novell Hires Another Lawyer for the Team -- Guess What He's Good At?
Authored by: Anonymous on Friday, June 10 2005 @ 03:15 AM EDT
Is he good at Spreading Firefox ? Writing new game levels for TuxRacer or JumpNBump ? Getting the open-source Java machine, compiler, and class libraries working ? Porting 'Celestia' to Playstation3 ? Voluntary service installing SuSE Linux 9.3 for every government official in Indonesia ?

This industry needs more lawsuits like it needs a hole in the head.

Is he the sort who will facilitate agreements, who will get technology to consumers, who will make the world safe so that when I write a computer program, I don't have to worry that some court might take my house away ?

Hopefully so. But that's how I'll judge him.

[ Reply to This | # ]

Novell Hires Another Lawyer for the Team -- Guess What He's Good At?
Authored by: Anonymous on Friday, June 10 2005 @ 06:53 AM EDT
[PeteS not logged in]

:: These representations have included patent infringement actions, copyright-related matters, breach of contract actions, and cases involving tortious interference with contract and unfair business practices claims.::

I remember predicting some time ago that when the dust settled, Novell would chase SCOg for breach of contract on all that license money from Sun and M$, to say nothing of the audit of existing SVRx revenues due Novell that was never started / completed (See the Novell - SCO correspondence page). SCOg had stonewalled the requests (prior to litigation) from Novell to do an audit, which they are entitled to according to the APA, as amended, if I recall correctly.

Apart from that, Novell would have other claims in the highlighted areas, especially the interference claims, at least so it seems to be, although IANAL.

An interesting thought - with this gentleman's apparent experience, should Novell show criminal conduct by SCOg officers (no slam dunk, but a thought, given IBM's Lanham act claims), then should SCOg be bankrupt, Novell can chase the officers of the corporation for the license money if they can show it was their money, not SCOg's.

Piercing the corporate veil is difficult, but not entirely unheard of. Shuold be interesting.

PeteS

[ Reply to This | # ]

Novell Hires Another Lawyer for the Team -- Guess What He's Good At?
Authored by: Anonymous on Friday, June 10 2005 @ 08:13 AM EDT
There is currently a case relating to overseas securities going on in the UK.

Three bankers are accused of defrauding a bank during the Enron story. The bank
is based in the UK. The bankers are based in the UK. The alleged offenses
occured while they were resident in the UK.

The bankers want to be proscuted in the UK. The SEC wants them in the US becase
the story involved Enron. The Enron execs were among the beneficaries of the
alleged scam - quelle surprise.

The US has MUCH tougher laws relating to securities violations. In the UK they
would - if found guilty - probably get off with a fine (they are NOT poor) and a
suspended sentence at worst. (Sentencing does depend on the judge etc so this
assesment could be wrong.) In the US they could face up to 20 years in jail and
*significant* fines.

The UK Home secretary (minister for the interior) has already signed the
extradition order. Its going before the courts not to determine its legality
under UK and EU law. While UK law is not binding on other countries in the EU
this case may well be taken as guidance in future disputes over 'cyberspace'
securities violations.

[ Reply to This | # ]

Novell Hires Another Lawyer for the Team -- Guess What He's Good At?
Authored by: Anonymous on Friday, June 10 2005 @ 10:34 AM EDT
Maybe they will take the offensive with sco and also microsoft along with all
their false marketing claims that they usually claim before their release of an
os i.e longhorn - and then say oh its delayed it will be out in the first
service pack.

I hope it is the second and they go after microsoft and their crappy false
marketing. To me sco just doesn't matter anymore - there are too many
important/big companies using linux for them to matter - they still haven't
produced any infringement and probably never will.

Maybe novell has had it with Microsoft's false marketing claims and are going to
start some good business practices in the industry. I am so sick of all the so
called journalist boosting up microsoft and what they are going to have in the
next release that it just kills any kind of competition and ups their stock.
Then the so called feature gets delayed until the first service pack (or never -
Winfs anybody) meanwhile all the comptetion was killed by the press before the
release.

I hope they go after this kind of so called business-plan.

[ Reply to This | # ]

95% of Sun and Microsoft license fees?
Authored by: Anonymous on Friday, June 10 2005 @ 10:56 AM EDT
SCO probably owes Novell 95% of the money paid to SCO by Microsoft and Sun for
source code licenses. Perhaps Novell hired Kenneth Brakebill to go after that
money.

As a stretch, if Novell can prove that the BayStar money was also part of the
Microsoft/Sun/SCO deal perhaps they sould sue for 95% of that.

----------------
Steve Stites

[ Reply to This | # ]

At the risk of spoiling all the fun.
Authored by: rsteinmetz70112 on Friday, June 10 2005 @ 02:29 PM EDT
This may simply be a move to realign the Novell legal team to be more
appropriate to the stage of the case, or one of the existing team may need to
move on to other matters.

We can only really wait on developments.

---
Rsteinmetz

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Don't forget Novell has a case pending against M$...n/t
Authored by: Anonymous on Friday, June 10 2005 @ 06:40 PM EDT
Don't forget Novell has a case pending against M$.

[ Reply to This | # ]

A loooong timeout for Darl looming
Authored by: Anonymous on Friday, June 10 2005 @ 11:02 PM EDT
Looks like Darl & friends are headed for the slammer...

[ Reply to This | # ]

Bubblegum cards
Authored by: jcr6 on Saturday, June 11 2005 @ 12:11 PM EDT
Do you have win/loss records for the different attorneys? Could you create a
set of cards for the different team members and sell them to support
Groklaw?

That would be cool.

How much would a Darl card be worth? (evil laughter)

[ Reply to This | # ]

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