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| Morrison & Foerster Finds Out Who Wants to Buy the Cattleback Patent - A Client! - Updated, as text |
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Monday, December 03 2007 @ 06:08 PM EST
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It simply doesn't get any funnier than this. While SCO has been trying hard to keep the name of the proposed buyer of the Cattleback Holdings patent a secret, even from the court, it turns out that the buyer was a client of Morrison & Foerster, although the Morrison & Foerster lawyers representing Novell weren't aware of it. Novell is opposing the sale.
Here's how something like this can happen.
It's a right hand, left hand thing, and it's because of SCO hiding behind a subsidiary. Morrison & Foerster is a huge law firm, with offices all over the place. The guys in the Hong Kong office don't know what the guys in San Diego are working on unless they all input their info into a database and cross check. Had SCO not played games with secrecy, this likely would not have happened, because no law firm can represent both sides of an issue, unless the clients say it's fine, and even then, it's not such a great idea, and before you accept a client you have to check to make sure there are no conflicts of interest. They have software just to keep track of it, because in a firm with hundreds of lawyers scattered all over the world, you won't otherwise know who everyone is representing.
But because it was a SCO sooper sekrit, it likely wasn't possible to immediately do the usual types of checking. Don't forget that SCO set up the Cattleback Holdings subsidiary precisely so no one would know it was really SCO. Darl McBride said pretty much that at the 341 creditors hearing. They didn't want buyers to know it was SCO. Somehow the lawyers representing the buyer realized what was happening anyway at some point, and lawyers for SCO realized it and told Novell's lawyers, and now the game is over. Novell's lawyers, if not Novell, know now the name of the buyer. This is an amazing development, with all kinds of potential issues arising from it. But it also meant Morrison & Foerster had to take immediate steps to build a wall barring all communications between lawyers for the buyer and lawyers for Novell, and the representation of the buyer has had to cease at least unless/until it is approved by the bankruptcy court. But now it knows who the secret buyer is.
I know. SCO is the gang that couldn't shoot straight. This hearing on Wednesday should be one for the books. Actually, with this surprising development, I'm wondering if we should keep alert for notice that the hearing has been postponed. It hasn't been yet, but it certainly is conceivable that it could be. There's a knot in the shoelace that has to be untangled. On the other hand, if the deal hasn't a prayer of being approved, it may not matter at all.
Here are all the filings:
240 -
Filed & Entered: 12/03/2007
Order on Motion to Authorize
Docket Text: Order Approving Debtors' Motion for Entry of Order Authorizing the Expansion of the Scope of Mesirow Financial Consulting, LLC's Retention and Employment to Include Sale and Valuation Services Nunc Pro Tunc as of October 8, 2007. (Related Doc # [189]) Order Signed on 12/3/2007. (LCN, )
241 -
Filed & Entered: 12/03/2007
Affidavit
Docket Text: Affidavit of Ordinary Course Professional Madson & Austin Filed by The SCO Group, Inc.. (Attachments: # (1)
Affidavit of Service and Service List) (Werkheiser, Rachel)
242 -
Filed & Entered: 12/03/2007
Notice of Withdrawal (B)
Docket Text: Notice of Withdrawal of Response of The 363 Group, Inc. to Debtors' Motion for Approval of Compromise of Incipient Controversy (related document(s)[235] ) Filed by The 363 Group, Inc.. (O'Neill, James)
243 -
Filed & Entered: 12/03/2007
Exhibit
Docket Text: Exhibit // Notice Regarding Limited Objection to Motion for Approval of Compromise of Incipient Controversy Regarding Cattleback Intellectual Property Holdings, Inc. (related document(s)[234], [194] ) Filed by Novell, Inc.. (Greecher, Sean)
244 -
Filed & Entered: 12/03/2007
Certificate of Service
Docket Text: Certificate of Service for 1st Interim Application of Dorsey & Whitney Filed by The SCO Group, Inc.. (Schnabel, Eric)
245 -
Filed & Entered: 12/03/2007
Affidavit/Declaration of Service
Docket Text: Affidavit/Declaration of Service (and Service List) Regarding [Signed] Order Approving Debtors' Motion for Entry of Order Authorizing the Expansion of the Scope of Mesirow Financial Consulting, LLC's Retention and Employment to Include Sale and Valuation Services Nunc Pro Tunc as of October 8, 2007 (related document(s)[240] ) Filed by The SCO Group, Inc.. (O'Neill, James) You see that 363 Group's withdrawal is total, if terse, probably the shortest filing yet. Two sentences, but they tell a tale: The 363 Group, Inc. ("363") previously a Response on November 28, 2007 to the Motion for Approval of Compromise of Incipient Controversy, filed by that above-captioned Debtors and Debtors in Possession (collectively, the "Debtors"). 363 withdraws its Response. There was a P.S., but they thought better of it. It read: "P.S. We hate Groklaw." Nah, just joking.
And here's Morrison & Foerster's Notice as text:
*************************************
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re
THE SCO GROUP, INC., et al.,
Debtors. |
Chapter 11
Case Number 07-11337 (KG)
(Jointly Administered) |
Hearing Date: December 5, 2007 at 10:00 a.m. (prevailing Eastern time)
NOTICE REGARDING LIMITED OBJECTION TO MOTION FOR APPROVAL OF
COMPROMISE OF INCIPIENT CONTROVERSY REGARDING CATTLEBACK
INTELLECTUAL PROPERTY HOLDINGS, INC. [DOCKET No. 234]
Counsel for Novell, Inc. hereby notifies the Court of the following:
On Friday, November 30, 2007, the undersigned counsel of Morrison & Foerster L.L.P. learned for the first time that other attorneys at Morrison & Foerster (who are not involved in the representation of Novell in this bankruptcy or the litigation between Novell and the Debtor) represent the proposed buyer of U. S. Patent No. 6,529,784 from Cattleback Intellectual Property Holdings, Inc. That proposed transaction is the subject of Novell's Limited Objection identified above. This information came both from counsel for Debtor and through internal communications.
The undersigned counsel of Morrison & Foerster promptly took the following steps:
1. Working with internal conflicts counsel at Morrison & Foerster, the attorneys representing the proposed buyer were instructed to cease all such representation related to the proposed transaction unless and until it is approved by this Court;
2. An internal "wall" was erected at Morrison & Foerster barring communication between attorneys representing the proposed buyer and attorneys representing Novell in this bankruptcy; and
3. The undersigned counsel of Morrison & Foerster notified its client, Novell, Inc., of the potential conflict of interest.
DATED: December 3, 2007
New York, New York
MORRISON & FOERSTER LLP
/s/ Adam A. Lewis
Adam A. Lewis (admitted pro hac vice)
[address, phone]
-- and --
Dated: December 3, 2007
San Francisco, California
MORRISON & FOERSTER LLP
/s/ Michael A. Jacobs
[address, phone]
Counsel for Novell, Inc.
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| Authored by: Rann on Monday, December 03 2007 @ 06:21 PM EST |
| Make'em short and concise please so PJ and fix'em! [ Reply to This | # ]
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| Authored by: RFD on Monday, December 03 2007 @ 06:23 PM EST |
The link for docket entry 245 actually points to 243.
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Eschew obfuscation assiduously.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, December 03 2007 @ 06:39 PM EST |
These can't be SCO lawyers. They have to be physicists. They're exploring the
quantum nature of the judicial system -- quantum litigation and the chaos of law
theory! :D[ Reply to This | # ]
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| Authored by: BigTex on Monday, December 03 2007 @ 06:40 PM EST |
| Links if you gottem" [ Reply to This | # ]
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- Wikipedia has a problem. - Authored by: Anonymous on Tuesday, December 04 2007 @ 04:30 AM EST
- Music industry raise white flag - Authored by: Anonymous on Tuesday, December 04 2007 @ 07:14 AM EST
- Good news for SCO? - Authored by: JamesK on Tuesday, December 04 2007 @ 10:18 AM EST
- SCO bankruptcy docket: #246, affidavit - Authored by: Anonymous on Tuesday, December 04 2007 @ 11:49 AM EST
- Dark energy - ten years on - Authored by: Anonymous on Tuesday, December 04 2007 @ 01:00 PM EST
- Novell, Utah & SCO's creditors - Authored by: Anonymous on Tuesday, December 04 2007 @ 01:30 PM EST
- Funny Microsoft bashing - Authored by: GelW on Tuesday, December 04 2007 @ 01:34 PM EST
- Off topic Here - WGA (Vista's Software Protection System) is working. - Authored by: Anonymous on Tuesday, December 04 2007 @ 03:55 PM EST
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| Authored by: davogt on Monday, December 03 2007 @ 06:43 PM EST |
The MoFos' document in the list above says they created an internal firewall
to
avoid conflicts of interest, and notified Novell of the potential for such a
conflict.
I presume this is standard practice in such situations.
Is
that the end of it, or does this jeopardize the future of their representing
Novell against SCO? It would be a shame to lose the MoFos.
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, December 03 2007 @ 06:43 PM EST |
The BS invoice has this citation:
10/30/07
AJS
TELEPHONE CONFERENCE
WITH J. BASARA (0.1); TELEPHONE CONFERENCE WITH J. BASARA AND J. HANDY REGARDING
PATENT SALE (0.2); PREPARE CORRESPONDENCE TO R. TIBBITTS REGARDING SAME (0.1)
0.4
The Dorsey invoice notes a CC on the same day with Basara (the Ocean
Tomo rep) and the buyer's attorney,and this likely refers to the same telephone
exchange.
MoFo has a Jake Handy working as patent attorney out of its
San Diego office.
Handy's MoFo biography
[ Reply to This | # ]
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| Authored by: GriffMG on Monday, December 03 2007 @ 06:48 PM EST |
So, who is it?
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Keep B-) ing[ Reply to This | # ]
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| Authored by: rsteinmetz70112 on Monday, December 03 2007 @ 06:55 PM EST |
Shouldn't Morrison & Foerster have already figured this out from the other
end? Checking for conflicts for the unnamed client, after all their work for
Novell against SCO is hardy secret. Unless Morrison & Foerster wasn't
working on that deal only for the client in general.
---
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: Stumbles on Monday, December 03 2007 @ 07:05 PM EST |
the curtain is?
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You can tuna piano but you can't tune a fish.[ Reply to This | # ]
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| Authored by: avox on Monday, December 03 2007 @ 07:08 PM EST |
I think this whole procedure with internal walls etc. could also keep the buyers
name from Novell, no? In fact, if the buyer doesn't want to be identified,
wouldn't MoFo be prohibited from revealing its client's name to Novell?[ Reply to This | # ]
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| Authored by: kurtwall on Monday, December 03 2007 @ 07:15 PM EST |
That's the trouble with lying and keeping secrets. Eventually, you can't keep up
with who knows what and the entire structure of deceit comes down around one's
ankles.[ Reply to This | # ]
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| Authored by: Filias Cupio on Monday, December 03 2007 @ 07:30 PM EST |
Law firm A has represented companies B and C for some years. B and C get into a
legal dispute. (Or even just need a contract drawn up between them.)
I presume this isn't uncommon. While you can check for existing conflicts with B
when considering taking on C as a client, you can't check for future conflicts.
So there must be well established procedures for dealing with this.
Depending on the size of the conflict and the size of the law firm, you
presumably either build those internal walls, or one of the clients has to go
elsewhere (at least for this particular dispute.)[ Reply to This | # ]
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| Authored by: Anonymous on Monday, December 03 2007 @ 08:08 PM EST |
before you accept a client you have to check to make sure there are no
conflicts of interest.
This is why MEGA Lawyer Firms destroy the
rights of public. There is no firm that little guy can go to defend against the
giants and have a fair chance. [ Reply to This | # ]
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| Authored by: Anonymous on Monday, December 03 2007 @ 08:22 PM EST |
Best not be too hasty about a 'mistake' compromising Novells sterling legal
counsel --- consider the possibilities: objections, appeals and delay --- [ Reply to This | # ]
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| Authored by: Anonymous on Monday, December 03 2007 @ 08:48 PM EST |
I just have to wonder: was this accidental?
Maybe I have my tinfoil hat on too tight, but I really do trust SCO so little
that I wouldn't put it past them to have their friendly buyer hire Novell's
lawyers on purpose just to throw a monkey wrench into things.
I mean, this will create a delay, right? And doesn't SCO love delays more than
anything?
But I have absolutely no proof, so I'm not going to claim that anything like
that happened, I'm just going to wonder about it. It just seems odd, you know?[ Reply to This | # ]
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| Authored by: Anonymous on Monday, December 03 2007 @ 10:24 PM EST |
Judge Gross - "What part of "no sale of assets until we find out what
the assets are" don't you understand?"
;-)[ Reply to This | # ]
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| Authored by: SpaceLifeForm on Monday, December 03 2007 @ 10:24 PM EST |
| How can it take nearly one month for this to come out?
Certificate of Service
and Service List
for [194] Motion to Approve Compromise Debtors' Motion for
Approval of Compromise of Incipient Controversy Filed by The SCO Group,
Inc.
Jake Handy of Morrison & Foerster was mailed on this.
Well, it
may not be a problem, but it's buggy to me.
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You are being MICROattacked, from various angles, in a SOFT manner. [ Reply to This | # ]
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| Authored by: Khym Chanur on Monday, December 03 2007 @ 11:23 PM EST |
Two questions about this:
1) Do Novell's particular MoFo lawyers know
who the buyer is, or is it just the firm in general, with part of the "firewall"
being that Novell's particular lawyers are kept in the dark as to who exactly
the buyer is?
2) If Novell's particular MoFo lawyers know who the buyer
is, and the buyer is someone who'd cause eyebrows to be raised, what can the
lawyers do? Submit a sealed note to the BK judge and trustee saying who the
buyer is? Tell Novell's in-house lawyers to submit a subpoena for the name of
the buyer? ---
Give a man a match, and he'll be warm for a minute, but
set him on fire, and he'll be warm for the rest of his life. (Paraphrased from
Terry Pratchett) [ Reply to This | # ]
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| Authored by: rc on Tuesday, December 04 2007 @ 12:19 AM EST |
| PJ needed soem help, and I tried to do so, but did a terrible job.
However,
I'm mostly talking to myself over there - Sparhawk dropped in, but that's it -
we have 4 comments, 3 mine and one Sparhawk's (and all Sparhawk says is that
members-only articles do not show up in RSS feeds, so they get missed).
So,
can someone come over there and help?
(PJ - I cannot find the PDF's you
mention are elsewhere, so I'm stuck, and will probably have no time any more for
fooling with it).
I assume 'we' still need the HTML-ing to be done, and I've
run out of time, so other help would be good!
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rc [ Reply to This | # ]
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| Authored by: rc on Tuesday, December 04 2007 @ 12:28 AM EST |
| So, since this IS tSCOg we're talking about, what are the chances that
they did this on purpose??? (Having Novell's law firm be theirs too)
Yeah, I
know, impossible.
But then, that's what we thought about M$ being
involved...
Yeah, not likely. :-)
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rc [ Reply to This | # ]
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| Authored by: garbage on Tuesday, December 04 2007 @ 07:54 AM EST |
Sleazy & time-wasting are too terms that keep coming to mind whenever I read
anything about the antics of Darl Mc Bride & the SCOg management....[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, December 04 2007 @ 12:26 PM EST |
There is no way this can become a big screen movie. No movie company boss will
believe the whole SCO saga. This has to go straight to a soap opera on TV.
Is Larry Hagman still alive? I think there is a part for him in that soap opera.[ Reply to This | # ]
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| Authored by: tiger99 on Tuesday, December 04 2007 @ 01:07 PM EST |
| ....who is the mystery buyer? We know their lawyers, but not their identity,
yet. Does anyone know whether we are likely to find out, and on what
timescale? For example, does the BK court need that information? As always,
enquiring minds need to know. Of course we would also like to know if there is
any connection, however well obfuscated, to a certain Monopoly, whose conduct is
thought to be illegal in certain parts of the world, or any other badly-behaved
participant in the industry. [ Reply to This | # ]
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| Authored by: Stevieboy on Tuesday, December 04 2007 @ 01:42 PM EST |
There is an old saying that the vast majority of crooks are either congenitally
stupid or consummately avaricious. Anybody who disagrees with this statement I
will now point in the direction of SCO.
Here we have a company whose executives appear to display both these
characteristics in abundance and, in this case, simultaneously.[ Reply to This | # ]
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