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Two More US Trustee Motions as text, More Bankruptcy Filings, and a Note on SCO v. Novell's Docket |
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Saturday, March 15 2008 @ 11:01 PM EDT
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Let's catch up on all the filings in the bankruptcy. The US Trustee's Office has filed two more motions regarding the SCO incentive bonuses. One says the US Trustee will file redacted and unredacted versions of its Objection, but in the event SCO loses its motion to seal, it would like the redacted parts made public. Here's the meat of it: 7. As noted in the U.S. Trustee's objection to the Seal Motion, the U.S. Trustee strongly disagrees with the Debtors' request for relief made therein. Pending a hearing on the Seal Motion, however, the U.S. Trustee will file both a redacted copy of her objection to the Bonus Motion and an unredacted copy of the objection under seal. In the event that the Seal Motion is denied in whole or in part, the U.S. Trustee submits that it will be appropriate for this Court to consider whether all or part of the redacted portions of the U.S. Trustee's objection to the Bonus Motion can be filed publicly.
The other motion is to limit who gets notice of the Motion to just the lawyers: 2. The U.S. Trustee requests that this Court limit notice of the Motion to the following parties: co-counsel to the Debtors, counsel to Novell, and counsel to IBM. Parties with a current
interest in the cases will receive electronic notification of the filing of the Motion. The U.S. Trustee submits that the proposed manner of notice is reasonable given the nature of the relief requested in the Motion. As you see, while the US Trustee's Office strongly opposes SCO's request for confidentiality, it nevertheless respects the court's right to decide what is and is not made public. Groklaw will do the same. The hearing on all this will be on April 2, so we don't have long to wait. I have both motions for you as text. But first, there's a notation in the docket in SCO v. Novell to tell you about: Filed & Entered: 03/14/2008
Motions No Longer Referred
Docket Text: Motions No Longer Referred: [505]Sealed Motion is before Judge Kimball (jwt) We're getting close to the trial now in Utah, and as you recall the judge has scheduled summary judgment motions to be heard on the day after the trial begins, in a special carved out time on April 30. Magistrate judges hear pretrial motions, and that function is done.
Here are all the bankruptcy filings:
392 -
Filed & Entered: 03/10/2008
Notice of Service
Docket Text: Notice of Service /Notice of Amendments to Schedules of Liabilities and Time to File Claims in Response to Such Amendments (related document(s)[390] ) Filed by The SCO Group, Inc.. (Attachments: # (1) Amended Summary of Schedules # (2) Certificate of Service and Service List) (O'Neill, James)
393 -
Filed & Entered: 03/10/2008
Application for Compensation
Docket Text: Monthly Application for Compensation Fourth Monthly Fee Application of Dorsey & Whitney LLP, Special Counsel to the Debtors and Debtors-in-Possession for the Period January 1, 2008 through January 31, 2008 Filed by Dorsey & Whitney LLP. Objections due by 3/31/2008. (Attachments: # (1) Exhibit A # (2) Exhibit B # (3) Exhibit C # (4) Exhibit D # (5) Notice Notice of Fourth Monthly Fee Application) (Schnabel, Eric)
394 -
Filed & Entered: 03/11/2008
Motion to Approve (B)
Docket Text: Motion to Approve (I) Scheduling the Confirmation Hearing; (II) Approving Form and Contents of Solicitation Package; (III) Approving Form and Manner of Notice of the Confirmation Hearing; (IV) Establishing Record Date and Approving Procedures for Distribution of Solicitation Packages; (V) Approving Forms of Ballot; (VI) Establishing Voting Deadline for Receipt of Ballots; (VII) Approving Procedures for Vote Tabulations; (VIII) Establishing Deadline and Procedures for Filing Objections to Confirmation of the Plan; and (IX) Granting Related Relief Filed by The SCO Group, Inc.. Hearing scheduled for 4/2/2008 at 02:00 PM at US Bankruptcy Court, 824 Market St., 6th Fl., Courtroom #3, Wilmington, Delaware. Objections due by 3/26/2008. (Attachments: # (1) Notice # (2) Exhibit A # (3) Exhibit B # (4) Exhibit C # (5) Exhibit D # (6) Proposed Form of Order # (7) Certificate of Service and Service List) (O'Neill, James)
395 -
Filed & Entered: 03/12/2008
Affidavit/Declaration of Service
Docket Text: Affidavit/Declaration of Service Regarding Notice of Schedule Amendments and Proof of Claim Form. (related document(s)[390] ) Filed by The SCO Group, Inc.. (O'Neill, James)
396 -
Filed & Entered: 03/12/2008
Affidavit/Declaration of Service
Docket Text: Affidavit/Declaration of Service Regarding Notice of Bar Date for Filing Proof of Claim Form and Proof of Claim Form (related document(s)[380] ) Filed by The SCO Group, Inc.. (Attachments: # (1) Part 2 # (2) Part 3 # (3) Part 4) (O'Neill, James)
397 -
Filed & Entered: 03/13/2008
Affidavit/Declaration of Service
Docket Text: Affidavit/Declaration of Service of Epiq Bankruptcy Solutions, LLC, Regarding Notice of Transfer of Claim (related document(s)[387] ) Filed by The SCO Group, Inc.. (Werkheiser, Rachel)
400 -
Filed: 03/14/2008
Entered: 03/15/2008
Motion to File Under Seal (B)
Docket Text: Motion to File Under Seal the Redacted Parts of the United States Trustee's Objection to the Debtors' Bonus Motion Pending a Hearing on the Debtors' Seal Motion Filed by United States Trustee. Hearing scheduled for 4/2/2008 at 02:00 PM at US District Court, 844 King St., Courtroom #3, Wilmington, Delaware. Objections due by 3/26/2008. (Attachments: # (1) Notice of Motion # (2) Proposed Form of Order # (3) Certificate of Service) (McMahon Jr., Joseph)
401 -
Filed: 03/14/2008
Entered: 03/15/2008
Motion to Limit Notice (B)
Docket Text: Motion to Limit Notice re: Motion to File Under Seal the Redacted Parts of the United States Trustee's Objection to the Debtors' Bonus Motion Pending a Hearing on the Debtors' Seal Motion (related document(s)[400] ) Filed by United States Trustee. Hearing scheduled for 4/2/2008 at 02:00 PM at US District Court, 844 King St., Courtroom #3, Wilmington, Delaware. Objections due by 3/26/2008. (McMahon Jr., Joseph)
Here are the two motions, 400 and 401, 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: April 2, 2008 at 2:00 P.M.
MOTION OF THE UNITED STATES TRUSTEE FOR AN ORDER AUTHORIZING
THE FILING OF CERTAIN PARTS OF HER OBJECTION TO THE BONUS MOTION
UNDER SEAL PENDING A HEARING ON THE DEBTORS' SEAL MOTION
In support of her motion for an order authorizing the filing of certain parts of her objection
to the Debtors' bonus motion under seal pending a hearing on the Debtors' motion to seal certain
information in connection with that matter (the "Motion"), Kelly Beaudin Stapleton, United States
Trustee for Region 3 ("U.S. Trustee"), by and through her counsel, avers:
INTRODUCTION
1. Under (i) 28 U.S.C. § 1334, (ii) (an) applicable order(s) of the United States
District Court for the District of Delaware issued pursuant to 28 U.S.C. § 157(a), and (iii) 28 U.S.C.
§ 157(b)(2), this Court has jurisdiction to hear and determine the Motion.
2. Under 28 U.S.C. § 586, the U.S. Trustee has an overarching responsibility to enforce
the laws as written by Congress and interpreted by the courts. See United States Trustee v.
Columbia Gas Sys., Inc. (In re Columbia Gas Sys., Inc.), 33 F.3d 294, 295-96 (3d Cir. 1994) (noting
that U.S. Trustee has "public interest standing" under 11 U.S.C. § 307 which goes beyond mere
pecuniary interest); Morgenstern v. Revco D.S., Inc. (In re Revco D.S., Inc.), 898 F.2d 498, 500 (6th
Cir. 1990) (describing the U.S. Trustee as a "watchdog").
1
3. Under 11 U.S.C. § 307, the U.S. Trustee has standing to be heard on the Motion.
GROUNDS/BASIS FOR RELIEF
4. On February 13, 2008, the Debtors filed their motion for a determination that the
incentive bonuses for the quarter ending October 31, 2007 were paid in the ordinary course of the
Debtors' business and for continuing authority to pay ordinary course of business incentive bonuses
(the "Bonus Motion") (Docket Entry # 344).
5. On February 13, 2008, the Debtors filed their motion to present evidence and
testimony related to the Debtors' 2007 incentive program under seal (the "Seal Motion") (Docket
Entry # 345).
6. On the same date as the filing of this Motion, the U.S. Trustee filed her objection to
the Bonus Motion. The objection necessarily discusses certain information which the Debtors
identify in the Seal Motion as information which should be kept under seal.
7. As noted in the U.S. Trustee's objection to the Seal Motion, the U.S. Trustee
strongly disagrees with the Debtors' request for relief made therein. Pending a hearing on the Seal
Motion, however, the U.S. Trustee will file both a redacted copy of her objection to the Bonus
Motion and an unredacted copy of the objection under seal. In the event that the Seal Motion is
denied in whole or in part, the U.S. Trustee submits that it will be appropriate for this Court to
consider whether all or part of the redacted portions of the U.S. Trustee's objection to the Bonus
Motion can be filed publicly.
2 CONCLUSION
WHEREFORE the U.S. Trustee requests that this Court authorize the filing of the redacted
parts of the U.S. Trustee's objection to the Bonus Motion under seal pending a hearing on the Seal
Motion.
Respectfully submitted,
KELLY BEAUDIN STAPLETON
UNITED STATES TRUSTEE
BY: /s/ Joseph J. McMahon, Jr.
Joseph J. McMahon, Jr., Esquire (# 4819)
Trial Attorney
United States Department of Justice
Office of the United States Trustee
[address, phone, fax]
Date: March 14, 2008
3
**************************************
**************************************
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: April 2, 2008 at 2:00 P.M.
Objection Deadline: March 26, 2008
MOTION TO LIMIT NOTICE RELATED TO
MOTION OF THE UNITED STATES TRUSTEE FOR AN ORDER AUTHORIZING
THE FILING OF CERTAIN PARTS OF HER OBJECTION TO THE BONUS MOTION
UNDER SEAL PENDING A HEARING ON THE DEBTORS' SEAL MOTION
(DOCKET ENTRY # 400)
In support of her motion to limit notice of her motion for an order authorizing the filing of
certain parts of her objection to the Debtors' bonus motion under seal pending a hearing on the
Debtors' motion to seal certain information in connection with that matter (the "Motion"), Kelly
Beaudin Stapleton, United States Trustee for Region 3 ("U.S. Trustee"), by and through her counsel,
avers:
1. Absent the order proposed herewith, notice of the Motion would be governed by
Local Bankruptcy Rule 2002-1(b), which requires service on "counsel for the debtor, the United
States Trustee, counsel for all official committees, all parties who file a request for service of notices
pursuant to Fed. R. Bankr. P. 2002(i) and all parties whose rights are affected by the motion." Local
Bankr. R. 2002-1(b).
2. The U.S. Trustee requests that this Court limit notice of the Motion to the following
parties: co-counsel to the Debtors, counsel to Novell, and counsel to IBM. Parties with a current
1
interest in the cases will receive electronic notification of the filing of the Motion. The U.S. Trustee
submits that the proposed manner of notice is reasonable given the nature of the relief requested in
the Motion.
WHEREFORE the U.S. Trustee requests that this Court limit notice of the Motion as
provided herein.
Respectfully submitted,
KELLY BEAUDIN STAPLETON
UNITED STATES TRUSTEE
BY: /s/ Joseph J. McMahon, Jr.
Joseph J. McMahon, Jr., Esquire (# 4819)
Trial Attorney
United States Department of Justice
Office of the United States Trustee
[address, phone, fax]
Date: March 15, 2008
APPROVED BY THE COURT:
__________________________
The Honorable Kevin Gross
United States Bankruptcy Judge
Date: April 2, 2008
2
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Authored by: The Mad Hatter r on Saturday, March 15 2008 @ 11:39 PM EDT |
Don't forget to use Clickies!
---
Wayne
http://sourceforge.net/projects/twgs-toolkit/
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Authored by: The Mad Hatter r on Saturday, March 15 2008 @ 11:41 PM EDT |
Newspicks discussion - use HTML and clickies.
---
Wayne
http://sourceforge.net/projects/twgs-toolkit/
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Authored by: The Mad Hatter r on Saturday, March 15 2008 @ 11:42 PM EDT |
Assuming that PJ made any mistakes, which we know she doesn't because she's
perfect...
OK, OK, even PJ is human.
---
Wayne
http://sourceforge.net/projects/twgs-toolkit/
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Authored by: The Mad Hatter r on Saturday, March 15 2008 @ 11:46 PM EDT |
That's two times this week I've got all three.
As to the filing - I think that the Trustee is trying to politely tell the judge
that something is rotten in the State of Denmark. The point about doing a
redacted version, but that we feel this shouldn't be redacted so we'd like to
release a full version if you approve your honor was very nicely done.
The Judge's response should be interesting.
---
Wayne
http://sourceforge.net/projects/twgs-toolkit/
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Authored by: grouch on Sunday, March 16 2008 @ 12:17 AM EDT |
I've gotten used to SCOG's overlength titles. Now it might be appropriate to
include with the responding motions, warnings about potential damages to mental
health:
MOTION TO LIMIT NOTICE RELATED TO
MOTION OF THE UNITED
STATES TRUSTEE FOR AN ORDER AUTHORIZING
THE FILING OF CERTAIN PARTS OF HER
OBJECTION TO THE BONUS MOTION
UNDER SEAL PENDING A HEARING ON THE DEBTORS' SEAL
MOTION
(DOCKET ENTRY # 400)
That has enough motion to require
dramamine, but...
In support of her motion to limit notice of
her motion for an order authorizing the filing of certain parts of her objection
to the Debtors' bonus motion under seal pending a hearing on the Debtors' motion
to seal certain information in connection with that matter (the "Motion"), Kelly
Beaudin Stapleton, United States Trustee for Region 3 ("U.S. Trustee"), by and
through her counsel, avers:
SAVE ME! I know what's going on
and I still get lost trying to parse that!
Pinning SCOG is like
trying to tie noodles to a squid in a centrifuge. In a rubber dinghy. At
sea.
--- -- grouch
"People aren't as dumb as Microsoft needs them to be."
--PJ, May 2007
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Authored by: Ian Al on Sunday, March 16 2008 @ 05:02 AM EDT |
SCOG filed motion 505 for Magistrate Judge Wells to consider before the trial.
07-Mar-2008 [Sealed] Motion for Judgment on the Pleadings on
Novell's Claims for Money or Claim for Declaratory Relief. Motion referred to
Brooke C. Wells.
and, the relief they requested
was,
...SCO therefore respectfully requests that prior to trial
the Court dismiss Novell's Sixth, Seventh, and Eighth Claims for Relief or
Novell's Fourth Claim for Relief.
PJ explains
that,
We're getting close to the trial now in Utah, and as you
recall the judge has scheduled summary judgment motions to be heard on the day
after the trial begins, in a special carved out time on April 30. Magistrate
judges hear pretrial motions, and that function is done.
and, as a
result,
Filed & Entered: 03/14/2008 Motions No Longer
Referred Docket Text: Motions No Longer Referred: [505]Sealed Motion is before
Judge Kimball (jwt)
So, because all the summary judgements are to
be heard after the trial begins then Judge Kimball will have to hear this one
instead of Magistrate Judge Wells. It's so straight forward I wonder why PJ
mentioned it. Judge Kimball will consider the motion after the trial begins
and will decide if it justifies giving the relief requested prior to the trial.
But the relief requested cannot then be granted because the claims requested for
dismissal have already gone to trial in front of Judge Kimball who is also
reviewing the request for dismissal. But, the trial cannot start until the Judge
comes to an opinion on the summary judgement because the relief requested is for
before the trial.
Clearly, the judge made a terrible error in setting the
time for summary judgements after the trial begins when he should have known
this one needs to be heard before the trial starts. Hey, wait a minute, SCOG
filed this motion well after the judge had published the timeline for hearing
the SJ motions.
Arrrrrrgh!
--- Regards
Ian Al
When nothing else makes sense, use Linux. [ Reply to This | # ]
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Authored by: Anonymous on Sunday, March 16 2008 @ 07:04 AM EDT |
Just dabbing my toes in some deep water.
I wonder if there are sharks down there ....
First -- I think SCOG owes Judge Kimball a trial brief. Novell was current on 12
Sept 2007. With a trial date set in April, SCOG needs to brief the Judge, and if
they do so early (ha!) Novell may want to supplement or amend their existing
brief. I'm waiting BSF/SCOG.
Second -- I'm looking at Exhibit B,
http://www.groklaw.net/pdf/SCOGBK-393ExB.pdf
Clearly I've been dropped on my head once too often.
I forget things. I hear voices. I see things. HELP!
Where, oh where, did we have a discussion covering the formation of a (new??)
Honk Kong Corporation in January 2008?
I thought I'd seen ALL the SEC filings,
the Chapter 11 filings,
the press releases,
the shrill shill supplements.
At no point to I recall much discussion about foreign subsidiaries,
formation of new offshore corporate bodies,
or funding and staffing of same.
Can anyone refresh my failing brain?
Why are the external law offices and internal management busy discussing it when
the bankruptcy court seems uniformed of this activity NOT in the ordinary course
of business.
Three -- why, oh why, is Dorsey just now amending board minutes for pre-petition
decisions? And submitting them for approval? Approval by people who were not
there? Transcripts are transcripts, right?
Is there a remote possibility no one ever kept minutes and they are
reconstructing what they must have said and decided pre-bankruptcy, to justify
the stock options and bonuses they are paying now.
And is that really legal, in an publicly traded company, with SEC rules and
oversight. I thought back dating was bad ....
Did I not hear at the 341 hearing that the trustee wanted to see the board
minutes ... about 4 months ago?
- - - - - - - -
There is just so much I don't understand.
Will I ever "get" the law?
Will I ever understand "business"?
Will I ever get tired of being such a "mushroom"?
Mushroom = reference to being kept in the dark and fertilized with organic
wastes.
[ Reply to This | # ]
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Authored by: The Mad Hatter r on Sunday, March 16 2008 @ 11:02 AM EDT |
I keep expecting to see BSF file a motion before Judge Kimball that:
1) Calls for sanctions against Novell's legal team for doing their job
competently
2) Calls for sanctions against Novell for not just giving everything to TSCOG
and saving everyone all of the court time
3) Calls for sanctions against IBM for having the gall to defend themselves in a
court of law
4) Calls for sanctions against the Nazgul for doing their job competently
5) Calls for sanctions against Judge Wells for doing her job competently
6) Calls for sanctions against Judge Kimball for doing his job competently
7) Calls for sanctions against the Justice Department for not stepping in and
forcing the Utah courts to give TSCOG everything whether they had any evidence
or not
8) Calls for sanctions against Groklaw, PJ, and all of us who post here for
having the temerity to question their honesty, and the validity of their case
9) Calls for sanctions against every journalist who didn't take their every word
at face value
10) Calls for sanctions against Illiad for publishing those devastating
cartoons
11) Calls for sanctions against the entire planet for not surrendering
immediately
Which probably tells you how this case has affected me since it started. I
wonder if I can sue BSF and TSCOG for mental distress?
---
Wayne
http://sourceforge.net/projects/twgs-toolkit/
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Authored by: igb on Monday, March 17 2008 @ 05:21 AM EDT |
I spent the last four days in Stratford a the RSC's temporary Courtyard home:
Richard II, Henry IV Pts 1 and 2, Henry V, Henry VI Pts 1, 2 and and 3, Richard
III between Thursday evening and Sunday afternoon. Hubris, blind ambition,
rage, bloodshed, a failure to listen to the entreaties of advisors, and ultimate
death and failure.
Resonances with SCO? Plenty.
I'll be back there in a few months for Hamlet (David Tennant as the prince,
Patrick Stewart as Claudius).
[ Reply to This | # ]
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Authored by: Anonymous on Monday, March 17 2008 @ 08:43 AM EDT |
This may be off topic for this article, but it is about the bankruptcy.
I was just reading the details of the reorganization plan (BK docket #368) and
the only ones that get to vote on the reorganization plan are the current
shareholders of SCO (Holders of Equity Interest in SCO Group). The shareholders,
which are usually the last ones paid in a bankruptcy and the ones that usually
do not get paid at all, are getting a promise to be paid at about the current
share price, and they are the only ones being allowed to vote. SCO's reasoning
for this is that all of the other creditors are going to be paid in full out of
the $5 million, and therefore they have no right to vote on the plan.
What about Novell & IBM, the ones that are only getting a promise that SNCP
"might" loan SCO the money to pay their legal judgements? Novell and
IBM do not get to vote on the reorganization plan, nor are they guaranteed that
their claims will be paid. Novell and IBM can object to the reorganization plan,
but if their objections are not upheld, then they don't get to vote on the
reorganization plan at all. This is unfairly biased against them and should bot
be allowed to happen.[ Reply to This | # ]
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Authored by: Anonymous on Monday, March 17 2008 @ 01:15 PM EDT |
SEC document SCOX DEF14A Jan 2008
---
Our
Compensation Committee established the following targets for the fiscal 2007
quarterly bonus pool (dollars in thousands):
Revenues Operating loss
Q1 - 2007 $5,825
$(1,706)
Q2 - 2007 $5,925 $(1,610)
Q3 - 2007
$6,075 $(1,643)
Q4 - 2007 $4,749
$(1,050)
Total $22,574
$(6,009)
--
The revenue and operating performance targets
will not be funded unless the revenue and operating performance targets are
attained at 100%. The personal objectives components will pay out each
quarter based on the percentage of individual achievement. The amount payable to
any employee will depend on a percentage of such employee’s annual base salary.
The applicable percentages of annual base salary for all employees are
established on an annual basis by the Compensation Committee. For executive
officers, there is no maximum amount that they may earn pursuant to the Bonus
Program. The components of the Bonus Program outlined above serve as criteria to
help the Compensation Committee determine what bonuses to pay to the executive
officers. However, the Compensation Committee has the discretion to award
bonuses even if this criteria is not met, and the Compensation Committee
exercised this discretion to award bonuses for the fourth quarter even though
the pre-established performance goal for operating loss was not met. The
Compensation Committee adjusted the performance goals for the fourth quarter as
described above.
-- [ Reply to This | # ]
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