|
|
| Novell's Trial Brief |
 |
|
Friday, September 14 2007 @ 02:00 PM EDT
|
Novell has filed its trial brief. It's heavily redacted, which is always frustrating, but it's still full of interesting tidbits. Also, the trial is scheduled for Monday through Thursday only. From PACER:
09/14/2007 - 467 - TRIAL BRIEF [REDACTED] by Defendant Novell, Inc..
(Attachments: # 1 Exhibit 1 # 2 Exhibit 2)(Sneddon, Heather) (Entered:
09/14/2007)
09/14/2007 - 468 - NOTICE OF CONVENTIONAL FILING of Novell's Trial Brief
[Filed Under Seal] filed by Defendant Novell, Inc. (Sneddon, Heather)
(Entered: 09/14/2007) A trial brief is where a party tells the court what claims it will be present at trial. It gives the judge an overview of the case. You could think of it as a kind of written, pre-trial opening statement, but to the judge. You've maybe seen opening statements to a jury on TV, where the lawyer tells the jury what happened and what it intends to prove, and this is similar but because it's for the judge, it's less dramatic. No pounding on the table. SCO will file one too. In fact, it looks like Novell has read a draft of SCO's brief, because on page 20 of the PDF, Novell lists a couple of affirmative defenses SCO says in its trial brief it will raise, estoppel and unclean hands. Whoah! Unclean hands? Looks like we can expect some mud slinging at trial.
As Novell calmly points out, if SCO wanted to raise affirmative defenses, it should have done so earlier, during the summary judgment briefing. Novell doesn't even know what unclean hands it might be alleged to have, since SCO hasn't said anything specific. This is hilarious. Novell says that even if it was guilty of any wrongdoing, unclean hands doesn't apply "if it can be shown that [the plaintiff] is the one 'least at fault' and that the party against whom the relief is sought was guilty of wrongdoing in respect to the same matters and is 'most in fault'." I gather we can expect some down-in-the-dirt wrestling at trial, and Novell is letting SCO know that if it tries flinging mud at Novell to protect itself, it will certainly lose the "most in fault" part. Here's a nice sentence: "Novell believes the evidence presented at trial will paint Novell's position as considerably more credible." Whoever wrote that was smiling, I expect. Novell also points out that SCOsource was all about SVRX copyrights, and SCO never claimed that any party infringed SCO's UnixWare rights, and so Novell says it's entitled to that revenue. We also find out why Novell has been stressing the issue of fiduciary duty in connection with the money from the SCOsource licenses and how to apportion it: Novell acknowledges there is ambiguity in this picture. The law is clear, however, that as Novell's fiduciary and as the party at fault for introducing any apportionment ambiguity into the SCOsource licenses, SCO must bear the burden of apportionment and any doubts as to entitlement to particular licensing revenue must be decided against SCO. Novell says the evidence it will present will demonstrate that "SVRX was at the heart of SCOsource" and it thus can't be that SVRX played only an "incidental" role. So while the amount might be ambiguous, the duty to pay Novell whatever the trial figures out is the right amount is not. And as I expected, Novell argues that because the court found SCO breached its fiduciary duties and was liable for conversion as a matter of law, "SCO is not entitled to any percentage of the SVRX Royalties and the Court should therefore make no 5% deduction from any restitution granted Novell". Oh, and it would like 7% prejudgment interest. This trial is going to be a lot more interesting than I thought.
|
|
|
|
| Authored by: feldegast on Friday, September 14 2007 @ 02:41 PM EDT |
So they can be fixed
---
IANAL
My posts are ©2004-2007 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.[ Reply to This | # ]
|
| |
| Authored by: MathFox on Friday, September 14 2007 @ 02:45 PM EDT |
Open Source legal issues...
---
If an axiomatic system can be proven to be consistent and complete from within
itself, then it is inconsistent.[ Reply to This | # ]
|
- SCOX trading halted - Authored by: Anonymous on Friday, September 14 2007 @ 02:50 PM EDT
- $1 - Authored by: Anonymous on Friday, September 14 2007 @ 03:00 PM EDT
- $1 - Authored by: Anonymous on Friday, September 14 2007 @ 03:15 PM EDT
- $1 - Authored by: Anonymous on Friday, September 14 2007 @ 03:18 PM EDT
- $1 - Authored by: Steve Martin on Friday, September 14 2007 @ 03:59 PM EDT
- $1 - Authored by: Anonymous on Friday, September 14 2007 @ 04:22 PM EDT
- $1 - Authored by: PJ on Saturday, September 15 2007 @ 05:39 PM EDT
- Trademark - Authored by: Wardo on Friday, September 14 2007 @ 05:52 PM EDT
- Have they filed bankrupcy this afternoon? n/t - Authored by: Anonymous on Friday, September 14 2007 @ 03:22 PM EDT
- CAN they? - Authored by: Anonymous on Friday, September 14 2007 @ 03:27 PM EDT
- SCO files chapter 11. - Authored by: Jamis on Friday, September 14 2007 @ 03:24 PM EDT
- Bankrupt! - Authored by: Anonymous on Friday, September 14 2007 @ 03:25 PM EDT
- Bankrupt! - Authored by: Anonymous on Friday, September 14 2007 @ 03:27 PM EDT
| |
| Authored by: jdg on Friday, September 14 2007 @ 02:58 PM EDT |
7% interest (compounded) for 4.4 years is 34.6%, so $30M -> becomes greater
than $40M.
---
SCO is trying to appropriate the "commons"; don't let them [IANAL][ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, September 14 2007 @ 03:05 PM EDT |
Trading has been halted pending important news, this may affect the trial.
Do NOT just show up on Monday without verifying everything is still on schedule.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, September 14 2007 @ 03:12 PM EDT |
At least for this item, then I need to live back here ;)
I'd have
booked my holidays at the last moment so I could attend every day
possible.
You can bet IBM will have representation in the court room to
find out what kind court-room games SCOG might play.
RAS[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, September 14 2007 @ 03:29 PM EDT |
| sco files bk
Now, explain what will happen? [ Reply to This | # ]
|
- What will happen? - Authored by: Anonymous on Friday, September 14 2007 @ 03:31 PM EDT
- SCO FILES FOR BK - Authored by: Anonymous on Friday, September 14 2007 @ 03:33 PM EDT
| |
| Authored by: Anonymous on Friday, September 14 2007 @ 03:36 PM EDT |
Does this affect the trial? I presume, no.
Does this mean that Novell won't get their money? Well, they would not have
gotten it anyway, because SCO doesn't have it.
Is this automatically accepted, or can the bankruptcy judge say, "No, you
don't qualify for bankrupcy" and/or "not for chapter 11"?
I seem to recall something about creditors who are owed money after the
bankrupcy being first in line. If so, this may mean that Novell becomes more
likely to get paid, rather than less.
MSS2[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, September 14 2007 @ 04:05 PM EDT |
The most hilarious part is in their "about SCO" part of the press
release:
... SCO owns the core UNIX operating system, originally developed by
AT&T/Bell Labs and is the exclusive licensor to UNIX-based system software
providers. ...[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, September 14 2007 @ 04:29 PM EDT |
Actually Novell Owns the Copyright to UNIX as already decided. What happenes to
SCO's products if something happens to the contract granting them a license?
Does Novell have more pull than appears here?[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, September 14 2007 @ 04:32 PM EDT |
Roger Parloff, a former lawyer, says on his blog that "By statute, a bankruptcy filing ordinarily stays
all pending litigation against the filer,
..."
Parloff is a SCO
sympathiser and probably has contacts
within SCO, so what he says may well be
what SCO had in mind
when taking the decision to file bankruptcy. My
impression
is that he deserves to be taken more seriously than the likes of
Enderle, MOG, etc. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, September 14 2007 @ 07:09 PM EDT |
The trial brief is pretty devastating -- it's no surprise that SCO felt
compelled to play the Bankruptcy card -- anything to avoid THIS day in court!
Novell describes precisely why its expert report (that SCO complained so hard
about) assumed "all revenue goes to Novell", and focused on only
calculating the exact amount SCO actually collected, plus interest. Novell
explains in this brief that this is ALL that is required, ie, to show how much
money SCO collected -- and it is SCO's burden to then show that SOME of the
money was actually due SCO. Novell will then witheringly attack THAT testimony
on cross-examination, but is case in chief will be fulfilled primarily by the
expert report.
Novell disposes of SCO's defenses in advance, namely, "estoppel" and
"unclean hands". As Novell points out, the only application of the
concept of estoppel here would have been for SCO to argue, in the summary
judgment briefs, that SCO believed that it could keep the UNIX licensing revenue
based on the prior conduct and statements of Novell.
But, as Novell points out, SCO never even made those arguments at that time, and
now the concepts have no application -- because SCO has been found to have
CONVERTED the funds -- to the sole remaining issue of apportionment. And as for
unclean hands? Well, for SCO to accuse of Novell of unclean hands is ---- well,
they MUST have been joking.
I did notice that Novell made an argument in terms almost word-for-word
predicted here on Groklaw. Probably we're just clairvoyant, but maybe Novell's
lawyers are stopping by and browsing the posts...[ Reply to This | # ]
|
| |
| Authored by: sagitta on Saturday, September 15 2007 @ 07:39 AM EDT |
| It's heavily redacted, which is always frustrating, but it's still full of
interesting tidbits.
Very enjoyable. I especially like page 4,
explaining why SCOsource was almsot wholly SVRX, and SCO knew it. Another
amusing part:
Microsoft Paid SCO [REACTED] for its SCOsource
license, as follows:[REDACTED for 2 and a half pages]. Also redacted
is the number of Linux users who bought SCOsource licenses, but it looks like a
3 or 4-digit number.
With the circumspection we have come to know and love,
they also observe If SCO had a meritorious unclean hands defense, it is
surprising that SCO did not raise it in the motion for summary judgment
briefing. And at the end:
For the reasons stated above, Novell
is entitled to:
- Apportionment of the SCOsource revenue in an amount to
be determined by the Court, without any 5% administrative fee
deduction;
- Prejudgement interest at 7%; and
- A declaration that
SCO exceeded its authority in entering into the SCOsource
licenses.
Based on that recovery, Novell anticipates seeking
additional relief in its post-trial briefing, such as a constructive trust.
Consideration of such relief is not necessary at trial, which per the Court's
direction will focus on the proper apportionment of the SCOsource revenue and on
Novell's entitlement to declaratory relief.
If I understand it
correctly, that means they want the judge to award the damages at trial, and
later create a trust if SCO is unable/unwilling to pay up immediately. While
SCO and BSF should take note of the per the Court's direction
part.
They also quote Judge Learned Hand, of the legendary Learned Hand
school of jurisprudence-fu ... no, I made up that last bit.
---
Sagitta [ Reply to This | # ]
|
|
|
|
|
