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SCO Responds to SUSE Re Staying the Swiss Arbitration - Updated |
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Wednesday, October 31 2007 @ 08:39 PM EDT
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SCO has responded [PDF] to the SUSE opposition [PDF] to SCO's motion [PDF] to "enforce" the automatic stay. This is the most significant document in today's bankruptcy collection. You can read about the SCO motion and the SUSE opposition if you want to refresh your memory as to what it's all about. In a simple sentence, SUSE wants to go forward with the arbitration in Switzerland; SCO wants it to be stayed. Oh, and they want SUSE punished blah blah. They always throw that sort of thing in, from the SCO v. IBM case onward. At least that's my impression. And it puzzles me a lot, because it never works out for them.
I'm still reading it, but it looks to me so far like SCO would like to do discovery in the bankruptcy court as to whether SUSE has more US ties than SUSE claims before a decision is made by the bankruptcy judge on the motion. That would inevitably stay the arbitration, I'd say. There is more than one way to skin a cat. I gather SCO's view is that because a favorable judgement for SUSE in the arbitration would wipe SCO out financially, it should be stayed. SCO is so funny. It wants what it wants. That's it. It sees nothing beyond that, from all I can tell. It argues that SUSE began the arbitration, even if SCO started the underlying litigation, so it should be stayed. Lots of arguments about how many angels can fit on the head of a pin, so to speak. But the bottom line is SCO reeeeally doesn't want the arbitration to go forward.
SCO's attorneys have corrected [PDF] the mistake about how often SCO is responsible to pay Novell the undisputed royalties. They acknowledge it's supposed to be monthly. They don't correct their representations that SCO has always timely filed reports and paid what was due, though. They claim that SCO is collecting monthly and paying "shortly thereafter" whatever that means in SCOese. But SCO's wording in the document they are now supplementing said this: Nowhere in the Motion does Novell state (because it cannot) that the Debtors (or their predecessors in interest) have ever failed to remit the required royalty payments in a timely fashion in the 12 years since the APA was executed. Instead, by making the timely, required post-petition payment of the royalties due for the third quarter of 2007, the Debtors have demonstrated (or will demonstrate) that they intend to perform in accordance with the terms of the APA. Sounds like they intended to pay quarterly, and 45 days after the close of the quarter, and that this is what they've been doing. Is that timely? Now that we are all up to speed on what the APA actually requires, I'd argue not. Yet look at SCO's wording in the supplement: Novell's principal "fear", expressed at paragraph 21 of the Motion, is that "SCO may not have the funds to pay Novell at the end of each quarter." (emphasis added). That anxiety must now be reduced by two thirds because SCO won't be holding Novell's money for a quarter. It will, and does even now, collect the royalties it receives for a month and remits promptly thereafter. More frequent payments, as Novell demands, would be nothing more than an annoyance on both ends of the transfer. Actually, for Novell, I expect it'd be a relief. If you can make those two paragraphs align, you're a better man than I am. And any mockery of Novell's "fear" of not getting paid seems bizarre, when you consider the context and all that has happened in this sad saga so far. If SCO owed me money, I'd be plenty afraid I'd never see it. If I were Novell, I'd be even more afraid. There is some water under this bridge.
I doubt that Novell cares if they are paid monthly. They just didn't want to be paid 45 days after each quarter. Do you blame them? Who knows who will even own SCO's assets by then or if SCO will be in Chapter 7 instead of 11. SCO is in a screaming rush to try to sell off what it calls certain Unix assets, n'est-ce pas? I note SCO's attorneys call SCO's IP perhaps their most valuable asset. Well. Which IP assets would that be? The ones the Utah court said they don't own after all? This next hearing on November 6 should be an absolute hoot.
Anyway, I'll try to swing back by on the arbitration document after I read it carefully. It's getting harder and harder to keep up, with so many filings every day.
There is also an order accepting Michael Jacobs on to the Novell team in the bankruptcy. And there is an objection filed to SCO's motion for authorization to pay professionals in the ordinary course, which listed a German litigation, but I can't really make out the basis for the objection yet. It's pro se, so that's probably why. But it's certainly a valid question, I think, to ask why the US company, in bankruptcy, is paying the bills for a litigation brought by the German subsidiary, which is not in bankruptcy.
And I have another question. Is Mike Olson the same as the Michael Olson who just quit as Comptroller? A Mike Olson is listed as the CEO of the SCO German subsidiary.
[Update: A Groklaw member Mathias Schindler saw my question, and he now tells me that he called SCO's German subsidiary and just asked. The woman who answered told him, he says, that it is one and the same person and that Mr. Olson remains the CEO of the German SCO subsidiary.]
Here, then, is today's collection: 171 -
Filed & Entered: 10/31/2007
Order on Motion to Appear pro hac vice
Docket Text: Order Granting Motion for Admission pro hac vice Michael A. Jacobs. (Related Doc # [170]) Order Signed on 10/30/2007. (LCN, )
172 -
Filed: 10/30/2007
Entered: 10/31/2007
Objection
Docket Text: Objection to Motion of Debtors Seeking Approval of the Retention & Employment of Certain Professionals Utilized by the Debtors in the Ordinary Course of Business (related document(s)[138] ) Filed by Alan P. Petrofsky (TAS, )
173 -
Filed & Entered: 10/31/2007
Memorandum of Law
Docket Text: Memorandum of Law Debtors' Memorandum of Law in Reply to SUSE's Special Opposition to SCO Group, Inc.'s Motion to "Enforce the Automatic Stay" (related document(s)[69], [141] ) Filed by The SCO Group, Inc.. (Attachments: # (1) Exhibit 1 - Filed Under Seal# (2)
Exhibit 2 # (3)
Exhibit 3 # (4) Exhibit 4 # (5) Exhibit 5 # (6) Exhibit 6 # (7) Exhibit 7 # (8) Exhibit 8# (9) Exhibit 9 - Filed Under Seal# (10) Affidavit of Service and Service List) (O'Neill, James)
174 -
Filed & Entered: 10/31/2007
Response (B)
Docket Text: Response to Supplement to Debtors' Response in Opposition to Novell, Inc.'s Motion for Order Directing the Debtors to Remit Undisputed Future SVRX Royalties to Novell Upon Receipt (related document(s)[166], [90] ) Filed by The SCO Group, Inc. (Attachments: # (1) Certificate of Service and Service List) (O'Neill, James)
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Authored by: om1er on Wednesday, October 31 2007 @ 08:43 PM EDT |
To make it easy to find.
---
August 10, 2007 - The FUD went thud.[ Reply to This | # ]
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Authored by: om1er on Wednesday, October 31 2007 @ 08:44 PM EDT |
Interesting items welcome.
---
August 10, 2007 - The FUD went thud.[ Reply to This | # ]
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Authored by: om1er on Wednesday, October 31 2007 @ 08:46 PM EDT |
To keep us informed on a wide variety of subjects.
---
August 10, 2007 - The FUD went thud.[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, October 31 2007 @ 09:32 PM EDT |
Okay, maybe "stolen" isn't the right word, but that's how it *feels*
when I look at what they're arguing.
It's as if someone had robbed a store then gone to bankruptcy court and begged
to be allowed to fence all the stolen goods to pay off their debts while whining
and working to ensure that the shopkeeper couldn't recover what was rightfully
theirs.
Frankly, I wish the bankruptcy judge would wake up and realize that SCO has no
future whatsoever, then put them in chapter 7, fire their executives, and toss
the filthy, rotting carcass they call a company to the wolves.[ Reply to This | # ]
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Authored by: RFD on Wednesday, October 31 2007 @ 09:35 PM EDT |
But it's certainly a valid question, I think, to ask why the US
company, in bankruptcy, is paying the bills for a litigation brought by the
German subsidiary, which is not in bankruptcy.
In the "first day"
hearing, Arthur Spector assured the court that all the overseas subsidiaries
were "cash flow positive", and that SCO would not be sending money to its
subsidiaries. SCO seems to have put him in the position of lying to the court.
I wonder if anyone else will notice.
--- Eschew obfuscation assiduously. [ Reply to This | # ]
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Authored by: Anonymous on Wednesday, October 31 2007 @ 10:09 PM EDT |
Their arguments seem reasonable enough so that the judge will grant the motion
and tell SUSE to apply to lift the stay. The only question that I have is
whether the international community will obey the judge's orders.[ Reply to This | # ]
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Authored by: mrsam on Wednesday, October 31 2007 @ 10:19 PM EDT |
I read the 171 filing. This filing mentions several issues, but one of them
seems to be fairly simple. According to the objection, there was an earlier
filing where SCO was expected to list all their pending legal cases, and it did
not mention anything regarding any Munich, Germany proceedings.
So now, SCO comes with a hat in hand, and they are asking the court to
permission to pay $180,000 for these legal proceedings.
The two just do not add up. Either SCO failed to disclose this existing
proceeding, or they want to piddle away 180 grand to start a new bogolawsuit,
and, as an equity holder, Mr. Petrovsky has a problem with it.
That's what I make of it.
[ Reply to This | # ]
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- 172 surely? n/t - Authored by: Anonymous on Thursday, November 01 2007 @ 04:00 AM EDT
- Yep... - Authored by: jbeadle on Thursday, November 01 2007 @ 01:19 PM EDT
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Authored by: Anonymous on Wednesday, October 31 2007 @ 10:34 PM EDT |
Eventually the Chapter 11 game will cease to be useful to SCO. Under what
circumstances can SCO get out of Ch 11? If they were to make a motion to exit
Ch 11, and show they have enough money, how likely would the bk court grant
that?
I see this Ch 11 as just another delaying tactic. They will be successful in
getting some things they want and then as it becomes more trouble than it is
worth and crimps their "style" too much, they will want out. I'm
wondering how this will play out. [ Reply to This | # ]
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Authored by: Simon G Best on Thursday, November 01 2007 @ 12:18 AM EDT |
How could the bankruptcy court possibly have jurisdiction over the foreign
arbitration? Even if the court granted The SCO Group's requested stay, wouldn't
SuSE and the arbitrators just carry on anyway?
I can imagine that if The
SCO Group told the arbitrators, "Hey! You've got to put the arbitration on
hold, because the bankruptcy court has granted a stay," the arbitrators would at
least simply ignore the stay. Quite possibly, they'd also take offence at the
apparent arrogance of a foreign, American company and foreign, American court
trying to assert foreign, American authority over them. It's surely not going
to help The SCO Group in that arbitration.
What happens when the
arbitrators and SuSE continue despite the supposed stay? The SCO Group would
have the choice of carrying on with it, or, well, not continuing with it. If
they carry on, they gain nothing there with the supposed stay. If they don't
continue, what then? I don't know the rules of the arbitration, but I would
imagine that SuSE could argue that they should not lose out just because The SCO
Group refuses to comply. I wouldn't be surprised if the arbitrators continued
anyway, leaving it up to The SCO Group whether or not to attend and participate.
It's easy to see things going SuSE's way, that way.
But what about back
in the US? What might The SCO Group say in Utah? "Your Honor, the bankruptcy
court granted a stay on the arbitration, but SuSE and the arbitrators ignored
it! Therefore, we move that the outcome of the arbitration be ruled invalid,
null and void, etc."
Of course, it's a safe bet that Novell would then
simply point out that the bankruptcy court had no jurisdiction over the
arbitration, and that therefore the outcome must still stand.
What, in
the end, can The SCO Group hope to gain from this - other than the possibility
of further delay?
--- "Public relations" is a public relations term
for propaganda. [ Reply to This | # ]
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Authored by: rsteinmetz70112 on Thursday, November 01 2007 @ 12:20 AM EDT |
James and Ryan.
---
Rsteinmetz - IANAL therefore my opinions are illegal.
"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 Thursday, November 01 2007 @ 01:08 AM EDT |
Novell has absolute authority over SUSE, Novell's own employees
manage SUSE and determine its day-to-day operations, and SUSE is merely a
"product business unit within Novell," very close to "nothing more than a
department." Lamb, supra.
SCO may live to regret that it brought
up this argument as it applies equally to SCO's foreign subsidiaries.[ Reply to This | # ]
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Authored by: electron on Thursday, November 01 2007 @ 02:10 AM EDT |
From SCOG's reply to SuSE:
QUOTE:
"SUSE Linux GmbH ("SUSE"), a 100% subsidiary of Novell and a 25%
owner of the Delaware LLC that purportedly "assigned" SUSE the rights
that form the basis of its arbitral claims against SCO Group, Inc.
("Debtor" or "sco Group"), seeks to torpedo SCO's
reorganization by proceeding with a three-week, $100,000,000 arbitration trial
in December in Zurich, Switzerland."
END QUOTE
Interesting that SCO's current lawyers consider it acceptable to use emotive
language such as "torpedo" when describing the lawful and logical
progression of arbitration in Europe that has been scheduled for many months
now and which SCO should have properly planned for.
The reason that could give SCO cause to be worried about this arbitration would
be if the claims against SCO are valid, clearly provable, and unambiguous.
Oh! My bad. They *are* valid, clearly provable, and unambiguous.
---
Electron
"A life? Sounds great! Do you know where I could download one?"[ Reply to This | # ]
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Authored by: jmc on Thursday, November 01 2007 @ 04:33 AM EDT |
Seems pretty high-powered English Barrister.
link
Whether
he'll be SCO-speak proof is another matter.
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, November 01 2007 @ 04:55 AM EDT |
hmmm, When the DC case was ongoing, SCO didn't consider DC's response to their
request for an audit to be at all "timely" and that was less than 45
days was it not?
Nothing surprising there, Darl/SCO has always had a lovely habit of presuming
the world should change for him and not the other way around.
/me holds hand to forehead in L shape whist looking at Darl..[ Reply to This | # ]
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Authored by: Yossarian on Thursday, November 01 2007 @ 05:06 AM EDT |
>I gather SCO's view is that because a favorable judgement
>for SUSE in the arbitration would wipe SCO out
>financially, it should be stayed.
What is the *legal* argument?
Regardless of the result in Europe SUSE can't collect even a
penny in the US without the approval of the bankruptcy court.
Why can't the judge tell SCO something like: "let's see the
result of the arbitration first and decide what to do about
it later?"[ Reply to This | # ]
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Authored by: Ian Al on Thursday, November 01 2007 @ 06:10 AM EDT |
SCO's motionThe Debtor validly served SUSE via Novell and its u.s.
counsel, in accordance
with Fed.R.Bank.P. 7004(b)(3).
So, if your
company is wholely owned by venture capitalists we don't have to serve the
company, we can just serve the venture capitalists. In any event,
this Court is authorized to permit any appropriate
method of
service.
even if it contravenes international law.
Service via the Hague Convention is unnecessary because SUSE has agents in the
USA, and moreover this form of service takes months and could not be effected
prior to the scheduled December 3 start of the Zurich trial.
All
we need is extensive discovery to find the millions of lines of US agents names
and addresses. We are fairly sure that PJ is one of them and we will be issuing
a subpoena real soon now. Anyway, we can't be expected to follow the US and
International law because that takes just too much time. BTW we want to delay
the Novell case in Utah to ensure the full word of the law is observed and to
stop Novell seeking to 'to torpedo SCO's
reorganization'.
From
2004 until July 2006, SUSE's CEO ("Geschäftsführer") was Novell's CFO and Senior
Vice-President, James Tibbetts, Jr. Mr. Tibbetts managed SUSE from Novell's
headquarters in Waltham, Massachusetts.
There, told you. SUSE's
CEO was an American who worked out of an office he had for also doing work for
an American company. If that does not constitute 'minimum links' for the
purposes of the stay, I don't know what does.
SCO's motion Upon
information and belief, UnitedLinux is no longer active.
SCO's
Reply to SuseSUSE attempts to gloss over the LLC Agreement and its
membership in the LLC (which still exists to this day)
Clearly, UL
is no longer active and therefore the arbitration is meaningless and should be
stayed. Also, UL and its LLC agreements exists to this day which means that, for
this reason alone, the arbitration should be stayed.
SUSE would
have the arbitration go forward even though SCO has been without arbitration
counsel since the Chapter 11 petition was filed. SCO's motion to retain
Boies Schiler & Flexner as arbitration counsel is set for hearing before
this Court on November 6. However, after negotiation, SCO's Swiss counsel Lenz
& Staehelin, has opted to withdraw, as it cannot accept the requirement of
court approval of its fee invoices.
So, the bankruptcy that SCOG
applied for to avoid the Novell court case has deprived them of counsel for the
related arbitration that was only necessary because they sued Novell and this is
all Suse's fault.
SUSE retained U.S. counsel to review and edit
the agreements. It is unacceptable for damn foreigners to hire US
lawyers to agree Delaware legal agreements.
I think the fast pace of the
bankruptcy proceedings means that all sides will suffer tangling loose ends. It
does not seem a bad effort considering the timescales and it does raise some
questions.
1. The Suse US links that SCOG refers to such as US offices and
direct marketing in the US are in the past. Novell took all that over when they
made the agreement with Suse that SCOG used to sue them. If there are no current
'minimum links' do the legal rules relating to foreign companies still
hold?
2. If a job in a foreign company is taken by a US citizen working, in
part, in the US, does that constitute a minimum link? How about if this was a
situation in the past and does not exist at the time the rule is being invoked
(all the comments about Suse CEOs and other officers seem to be past situations
although some were quite recent)? Does working for a foreign company out of a US
office provided as part of the job of another company constitute the 'office and
two secretaries' required for a minimum link? I note that this office is not a
legal address for Suse, but I assume that a Suse officer could be served at
his/her home, if necessary. In US law, if the foreign company needs to be
served, is it sufficient to serve any US company that the officer also works
for, or must service actually be at the officer's US place of work or another
address regularly used by the officer?
3. If a US law firm is representing a
US corp in a US action and is also, in part, representing a foreign company in a
Swiss arbitration is it sufficient in US law to serve on that foreign company by
serving the US law firm?
--- Regards
Ian Al
Linux: Genuine Advantage [ Reply to This | # ]
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Authored by: Anonymous on Thursday, November 01 2007 @ 06:46 AM EDT |
Although SUSE continues to argue before this Court that the current
phase of the arbitration pertains only to SCO's counterclaim and that SUSE is
acting only in defense of the counterclaim, its recently submitted rejoinder
shows that either SUSE is misrepresenting the facts to this Court or that it
cannot itself differentiate where SUSE's own claims end and where SCO's
counterclaim begins.
Are they referring to the copyright violation
claim that SCO made against SUSE in the Utah litigation? Isn't SCO the plaintiff
in that litigation ,not the counter-plaintiff? Shouldn't they be saying "SCO's
claim", not "SCO's counterclaim"? Seems like just another of SCO's ploys to
twist the facts in its representations to the court.[ Reply to This | # ]
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Authored by: DannyB on Thursday, November 01 2007 @ 08:20 AM EDT |
> There is more than one way to skin a cat.
SCO should not snicker.
Those words should make SCO execs cower in fear.
I seem to recall that Novell masterfully played SCO once before. Isn't that how
this got into arbitration?
---
The price of freedom is eternal litigation.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, November 01 2007 @ 08:50 AM EDT |
Darl is just a puppet. Granted, he's probably just as guilty of perpetrating
the lies, but didn't Ralph Yarro, III start this whole mess? Shouldn't he be
accountable in some way?[ Reply to This | # ]
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Authored by: Anonymous on Thursday, November 01 2007 @ 10:22 AM EDT |
...collecting monthly and paying "shortly
thereafter"...
PJ,
As someone who has parsed SCO verbiage
before, I'm surprised that you didn't recognize this. It means, quite simply,
that sometime after the money is due they will pay some amount short of what is
due.
Tom
"We cannot solve our problems with the same
thinking we used when we created
them." -- Albert
Einstein [ Reply to This | # ]
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Authored by: Anonymous on Thursday, November 01 2007 @ 10:42 AM EDT |
SCO claims that, if they get past the jurisdiction argument, that the stay
applies to "all proceedings" as stated in the BK code, which they
argue means arbitration proceedings as well.
We wondered about that here on Groklaw -- it seems like a leap in logic.
In this filing, SCO has cited, not any statute, and not any court holding, but
only a footnote in a case where a judge noted that a Congressional/House Report
included such language in discussing the statute, even though the words don't
appear in the statute as such.
Here's the language of the footnote cited by SCO, at 946 F.2d 1031:
"See In re Johns-Manville Corp., 31 Bankr. 965, 968-69 (S.D.N.Y. 1983)
(disjunctive HN4Go to the description of this Headnote.language in § 362(a)(1)
requires stay of declaratory judgment action against the debtor regardless of
whether such action constitutes a claim against the debtor). As Congress noted,
"the scope of [subsection a(1)] is broad. All proceedings are stayed,
including arbitration, license revocation, administrative and judicial
proceedings." House Report at 340. When a pre-petition proceeding has been
instituted directly against the debtor, the stay applies unless the proceeding
falls within a statutory exception or the bankruptcy [**13] court grants
relief.
So SCO has found a foothold for its argument, but it's and not part of the
statute.
LEXLAW[ Reply to This | # ]
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Authored by: rsteinmetz70112 on Thursday, November 01 2007 @ 12:49 PM EDT |
Thanks Mathias Schindler.
That is a curious situation. Why would Michael Olson quit as comptroller and not
as president of the German subsidiary.
It's not like he got another job.
---
Rsteinmetz - IANAL therefore my opinions are illegal.
"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: darkonc on Thursday, November 01 2007 @ 01:38 PM EDT |
Does being the CEO of an SCO subsidiary, make Olson a bit easier to drag into
the bankruptcy court to ask questions about pre-bankruptcy
activity? --- Powerful, committed communication. Touching the jewel within
each person and bringing it to life.. [ Reply to This | # ]
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Authored by: JimDiGriz on Thursday, November 01 2007 @ 02:47 PM EDT |
"Open letter to Chris Wilson"
http://weblogs.mozillazine.org/roadmap/archives/2007/10/open_letter_to_chris_wil
son.html
JdG[ Reply to This | # ]
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Authored by: Anonymous on Thursday, November 01 2007 @ 03:39 PM EDT |
Asking for punishment for their opponent at every opportunity, I believe, is
another example of doing everything possible to irritate and annoy in the hope
that the opponent or the judge will lose their temper and make a critical
mistake. It's a strategy that served Microsoft very well in their US anti-trust
case.[ Reply to This | # ]
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Authored by: jmc on Thursday, November 01 2007 @ 04:54 PM EDT |
It's being reported on other message boards that both IBM and Novell have filed
objections to the asset sale.
UK readers may feel the hearing is a day too late.....
[ Reply to This | # ]
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Authored by: cricketjeff on Thursday, November 01 2007 @ 05:00 PM EDT |
It occurs to me that at some point a decision is going to come from a US judge
that cuts across the law in some other country, and the US judge is going to
discover that he is the one with assets at risk.
SUSE may very well have genuinely no US assets, SCO does have some outside the
US and who knows who else in the case does. Jurisdiction shopping can be a
dangerous game.
---
There is nothing in life that doesn't look better after a good cup of tea.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, November 01 2007 @ 06:34 PM EDT |
The arbitration committee requested that both Suse & SCO submit their
respective takes on the stay. Suse has apparently done so.
SCO, it appears, has never responded to that, instead they immediately filed
this motion in the BK court. They don't seem to have a lot of confidence that
their take will get very far with the committee.
And what will Judge Gross think about the fact that SCO urgently wish him to
interfere in an international proceeding, yet one to which SCO doesn't even
bother to respond. [ Reply to This | # ]
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Authored by: Anonymous on Friday, November 02 2007 @ 11:58 AM EDT |
to retention of BS&F as litigation counsel. [ Reply to This | # ]
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