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Novell v. MS - Novell's Letter: If MS Gets to Appeal, We'll Ask to Appeal Too
Sunday, August 14 2005 @ 06:40 AM EDT

There was a teleconference with the judge and the parties on Wednesday, August 3, in the Novell v. Microsoft antitrust litigation, a monthly status conference, and evidently they discussed Microsoft's motion for an immediate interlocutory appeal of parts of Judge Motz's Order. If you recall, the judge denied Microsoft's motion to dismiss Novell's complaint with respect to two of Novell's claims; 4 others were dismissed. Microsoft would like to appeal regarding the two left standing.

I take it Novell thinks, after the call, that there is a good chance that Microsoft is going to be granted its motion. Marbux told me that he thought they would be granted their motion also. So, Novell has sent a letter to Judge Motz, dated August 12, giving it one last try, reiterating that they believe he should not let Microsoft go forward, but if he does and the appeals court grants permission for Microsoft to appeal Motz's order, Novell will then ask for permission to immediately appeal the parts of Judge Motz's order that went against Novell. If the appeals court doesn't grant Microsoft a hearing, then Novell will not ask to immediately appeal its claims that were dismissed by the order. Got all that?

: )

I asked Marbux if he sees anything else worth mentioning, and he adds this:

I read it as Novell recognition that Judge Motz may grant Microsoft's motion for permission to apply to the Fourth Circuit for an appeal. But Novell doesn't want to weaken their position in opposing Microsoft's subsequent application to the Fourth Circuit by filing their own motion to allow an appeal.

So in effect they are giving Judge Motz a heads-up notice that if the Fourth Circuit ultimately decides to allow Microsoft to appeal, Novell will want a quick ruling at that time on a Novell motion for permission to apply to the Fourth Circuit for the right of appeal.

Novell is sitting pretty at this point. They have a ruling that they get to proceed with discovery on two claims. They know Microsoft will never let the case go to trial; Microsoft will settle high to foreclose that, if necessary, I would think. Microsoft will be nearly as opposed to any summary judgment rulings. Microsoft can not afford a binding adverse ruling in the MDL 1332 litigation or the ruling will metastasize into further cases being filed with collateral estoppel claims.

So Novell's strategy, I think, is to really fight to keep the merits of the complaint in district court. For Microsoft its motion is a win or settle issue. If they get past Judge Motz, then they have the same interests in winning a motion to allow an appeal before the Fourth Circuit. Then finally, they would have to actually win the appeal.

Novell's lawyers are saying they don't want both sides arguing for the right of appeal. But if Microsoft ultimately gets to file an appeal, Novell will want to appeal Judge Motz's rulings against Novell's other claims for relief.

Marbux already explained why, in his view, this is a must-win motion for Microsoft. You can find all the documents on this case on the permanent Novell-MS page, linked to on the left, but for convenience, here are the rest of the filings that are relevent to this letter:

Novell mentions Federal Rule of Civil Procedure 54(b), which you can read here. And here is Novell's letter:


[Dickstein Shapiro Morin & Oshinsky LLP letterhead]

August 12, 2005


The Honorable J. Frederick Motz
United States District Judge
United States District Court for the District of Maryland

Re: In re Microsoft Corp. Antitrust Litigation, MDL 1332

Dear Judge Motz:

We write with respect to Novell, Inc. v. Microsoft Corp., Civil Action No. JFM-05-1087, to restate with more precision our position with respect to the issue of immediate appeals discussed during the monthly status conference call of Wednesday, August 3, 2005. We continue to believe that certification of Microsoft's interlocutory appeal is not justified, for all the reasons set forth in Novell's opposition memorandum dated July 12, 2005; however, assuming this Court grants Microsoft's motion for certification, Novell will seek an immediate appeal under Federal Rule of Civil Procedure 54(b), if but only if, the Fourth Circuit grants Microsoft's petition for permission to appeal.

We respectfully request that Your Honor not enter such an order regarding Novell's appeal at this time. If the Fourth Circuit does grant Microsoft's petition, then Novell will immediately and respectfully request this Court to make the necessary finding concerning Novell's appeal under Rule 54(b).

If you have any questions or concerns please let us know.

Very truly yours,

Jeffrey M. Johnson

cc: David B. Tulchin, Esq. (by First class and electronic mail)
Steven L. Holley, Esq. (by First class and electronic mail)

[Dickstein Shapiro address, phone, fax, email]


Novell v. MS - Novell's Letter: If MS Gets to Appeal, We'll Ask to Appeal Too | 80 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here if needed.
Authored by: WhiteFang on Sunday, August 14 2005 @ 07:07 AM EDT

[ Reply to This | # ]

Novell v. MS - Novell's Letter: If MS Gets to Appeal, We'll Ask to Appeal Too
Authored by: WhiteFang on Sunday, August 14 2005 @ 07:11 AM EDT
Sitting pretty indeed!

Though I'd _love_ to see this go to trial. And of course I'd also love to see MS
lose. The thought of many other cases happening as a result of MS losing warms
my heart.


[ Reply to This | # ]

Off Topic Here Please
Authored by: WhiteFang on Sunday, August 14 2005 @ 07:14 AM EDT
And don't forget to make links clicky.

<a href="">Like this</a>

Also don't forget to use HTML mode when needed!

[ Reply to This | # ]

Why "Sitting Pretty"
Authored by: gus_goose on Sunday, August 14 2005 @ 08:12 AM EDT
IANAL, so maybe there's something I missed.

Microsoft is seeking permission to make an appeal on the 2 currently successful
Novell claims. If permission is granted to appeal, and their appeal is
successful, then Novell has no case, so it is sending a "head's up" to
the Judge that if the appeals court agrees to hear Microsoft's appeal, they will
then ask the district judge to let them appeal their already dismissed claims.

here are a lot of "ifs" in there. Given that the district judge gives
permission to file an appeal to Microsoft, it is relatively certain that there
is merit for the appeal, and the court will hear the appeal. On the other hand,
there is obviously a significant lack of merit to the already dismmised claims
of Novell, so the district judge may well deny leave to appeal, and even if
leave is granted, that does not mean that the appeal court will hear the appeal.
Firther, there is even less probablilty that the appeal court will rule in
favour of Novell.

The way I see it is that if Microsoft get's heard by the appeal court they have
gained a huge advantage, and that Novell will have very little hope of reversing
the dismissal on the 4 dismissed claims.

Microsoft will be happy to stall the proceedings as much as possible, so a
low-risk appeals process from Novell would be to it's liking.

What did I miss?


[ Reply to This | # ]

"Microsoft will never let the case go to trial"
Authored by: tiger99 on Sunday, August 14 2005 @ 09:05 AM EDT
I don't pretend to understand all the legal issues. But I do think I understand why M$ almost always try to settle out of court..... The guilty usually do.

In this case, can and should Novell force this one to go all the way to trial, instead of allowing M$ to simply buy themselves out of trouble?

[ Reply to This | # ]

If MS Settles...
Authored by: Mark Grosskopf on Sunday, August 14 2005 @ 10:39 PM EDT
I'd hope that with Novell's award earlier of several hundred million, that they
would use part of it as a litigation warchest. Why?

Key to cowing MS is to force public recognition, through discovery, and public
dissemination of the proceedings of the tactics they have used in the past.
This would force Kollar-Kotely to look at and ask for industry guidance as to
their behavior. Forcing, of course, a different path in the oversight period.

Speaking of which (the period), MS had 5 years from, like, April 2002 of
oversight. Odd that that duration is consistent with when they will heavily
push "Vista", e.g. out from under the oversight requirements. Which
means they can renew their monopolistic practices of the dirtier kind with
impunity. Competitors would again have to file suits of such practices, or the
DOJ would have to open up the case again.

And Bush is still president then, so...don't hold your breath. MS is waiting
this out to get past the oversight period. This will be key as well to any
patent barrage they wish to open. Even if IBM, Novell and HP start IP actions
as well, it will have to fall in line behind MS, meaning that MS can clean the
competition's clock before the pro-OSS white hats can get any momentum going of
their own.

I wouldn't put it past them; not one bit.

Incidently, there was an article in the Houston Chronicle today, whose main
topic was the loss of engineering talent, in all Engr'g professions, including
Computer Science in the United States.

It discussed how innovation, and patents (what?) are moving offshore and that
other countries would continue to innovate more than us due to the higher
educated specialists (some in US universities) in the engineering professions.

I'd rather think of it as patents causing stasis here in the US and lack of same
elsewhere, triggering innovation in their home countries.


[ Reply to This | # ]

Novell v. MS - Novell's Letter: If MS Gets to Appeal, We'll Ask to Appeal Too
Authored by: Anonymous on Monday, August 15 2005 @ 04:28 AM EDT
I don't see Novell giving much reasons for its potential appeal.
They just seem to threaten the Judge without telling why or on what grounds
they'll appeal.
I can imagine the hard times SCO would be facing here on Groklaw if it were to
use the same tactics in Court.

[ Reply to This | # ]

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