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More Hints from More Bills in the SCO Bankruptcy
Sunday, May 18 2008 @ 01:45 AM EDT

New and fascinating filings in the SCO bankruptcy. What are these folks up to? Take a look at the Berger Singerman's bill and see if you don't notice some odd entries. I'll tell you what I notice, and then you can do the same. Mesirow has filed another bill. They never get tired of doing that. But they get shorter and shorter. This bill is for $125,930.70, which represents a voluntary reduction. Hahahaha. 274.90 hours of financial counseling. What better for a company in bankruptcy? The bulk of the time was under the header "Liquidation Analysis". What is that? How to run through all your cash so Novell can't get any? (Joke. We saw one version of it already, in their withdrawn proposed reorganization plan involving Stephen Norris [PDF], p. 15.) Both of them have been busy as bees working on SCO's alleged new reorganization plan. It seems to be humming along, even if SCO isn't.

Here are the filings:
473 - Filed & Entered: 05/13/2008
Certificate of Service
Docket Text: Certificate of Service Sixth Monthly Fee Application Filed by Dorsey & Whitney LLP. (Schnabel, Eric)

474 - Filed & Entered: 05/13/2008
Application for Compensation
Docket Text: Quarterly Application for Compensation (Second) and Reimbursement of Expenses as Financial Advisors to the Debtors for the Period from January 1, 2008 through March 31, 2008 Filed by Mesirow Financial Consulting, LLC. Hearing scheduled for 6/17/2008 at 02:00 PM at US Bankruptcy Court, 824 Market St., 6th Fl., Courtroom #3, Wilmington, Delaware. Objections due by 6/2/2008. (Attachments: # (1) Notice # (2) Proposed Form of Order # (3) Certificate of Service and Service List - Fee Application # (4) Certificate of Service and Service List - Notice Only) (Werkheiser, Rachel)

475 - Filed & Entered: 05/16/2008
Application for Compensation
Docket Text: Monthly Application for Compensation (Eighth) for Services and Reimbursement of Expenses, as Co-Counsel to the Debtors in Possession for the Period from April 1, 2008 through April 30, 2008 Filed by Berger Singerman, P.A.. Objections due by 6/5/2008. (Attachments: # (1) Notice # (2) Exhibit A # (3) Certificate of Service and Service List) (O'Neill, James)

If you look at Berger Singerman's Exhibit A, what do you suppose the "warrant idea" might be? And why would Stephen Norris and Darl McBride be involved in a teleconference with the attorney about the new deal, if McBride is allegedly being thrown overboard, if the deal goes through? Here are the entries I notice in the section on Case Administration and Business Operations, beginning on page 5:

4/1/2008 AJS Telephone Conference with D. Lampert Regarding Board Call and Call with D. McBride and S. Norris 0.20
4/1/2008AJSTelephone Conference with F. Caplan Regarding Warrant Idea and Call With S. Norris and D. McBride0.20 ...
4/2/2008 AJS Teleconference with D. Lampert Re Warrant Idea0.30...
4/12/2008AJS Exchange Email, Communications with D. McBride and D. Lampert Re Getting Deal Documented 0.20 ...
4/29/2008 DL Conference with Investment Banker, Follow up with Client, Etc. 0.40

Then on page 11, under the heading Claims Administration and Objection, we find something I wasn't expecting:

4/4/2008AJS Telephone Call to H. Swaim, Esq., Counsel for Red Hat 0.10
4/4/2008AJS Telephone Call From and Telephone Call to J. Miller, Esq., Counsel for Red Hat 0.10
4/7/2008AJSTelephone Conference with H. Swaim, Esq., Counsel for Red Hat Regarding Proof of Claim and Post-Confirmation Trial Matters 0.20

So Red Hat is in the room, y'all. And so is York:

4/7/2008 AJS Exchange E-Mail Communications with S. McNutt Regarding Claim of York0.10

*Claim of York*??! What claim? Are they asserting a claim? Three days later, we see emails between Berger Singerman's Arthur Spector and Ryan Tibbitts at SCO regarding getting York its expenses reimbursed. And on the 10th, there is an office conference regarding "Trial of Motion to Pay York". So they know this isn't going to fly without a fight. The next day, you see "communications" with the US Trustee about "objection to same". There follow days of activity about it, and a notation regarding objections to "motion to pay York Administrative Expense". Then on the 21st, we see a conference with Ryan Tibbitts "regarding proofs of claim and proofs of interest".

And then on page 13, under the category of Tax Issues we see something truly fascinating:

Review Email From Grace Robson; Review Prior Emails; Conference with Grace Regarding Status of Net Operating Loss and Tax Gain Analysis to be Prepared by Accountants
4/14/2008 NJ Review Tax Issues Regarding Proposed Changes to Restructuring; Review Revised MOU; Telephone Conference with Dan Lampert Regarding Option and Warrant Tax Issues; Various Conferences Regarding Same 3.50
4/14/2008 SSP Review Revised MOU, Conferences with Nick Jovanovich and Dan Lampert Regarding Tax-Related Issues and Implications3.50
4/14/2008 NJ 0.30
4/24/2008 GR Communications with K. Nielsen and N. Jovanovich Regarding Tax Implications of Plan0.30

That is on page 13. Weird. Do you suppose Stephen Norris is interested in SCO precisely because it is virtually certain to eternally have a net operating loss and hence a tax benefit? Or is it just a fringe benefit? I know it sounds crazy, but SCO... well... finish the sentence yourselves.

That still isn't the most fascinating entry. Here's the most intriguing, on the last page of Exhibit A:

Communications with R. Tibbitts Regarding Objections to Subpoena for Utah State Court Litigation
4/1/2008AJS Review Correspondence from T. Landau Regarding SUSE Arbitration 0.10
4/15/2008 AJSTelephone Conference with S. Singer Regarding MOU0.30

See what I mean? First, we learn the SUSE arbitration is alive, even if stayed by the bankruptcy court for now. Second, why is Stuart Singer of Boies Schiller involved in the MOU for the Stephen Norris deal? I gather there is one, at least in draft form. And what in the world is the "Utah state court litigation"? If any of you in Utah could check the court clerk and see if you can find out what's going on, that'd be great. Just look for the "usual suspects", as Judge Dale Kimball humorously calls them, and see if you find anything.

Berger Singerman is now due more than a half million, by the way. This bill is for $45,247.47, and the previous balance was $480,575.57, for a total of $525,823.04. The bill says they haven't been paid anything yet. $3,302.50 of this bill is for "tax issues relating to the changes to the new proposed structure for purchase of the company". They charge $28,886 for researching and conducting multiple conferences regarding "merger and acquisition issues and structuring plan alternatives." The firm says it worked on the Memorandum of Understanding, came up with various revisions, and helped SCO develop a business plan. Hmm. And that plan would be what? We are all ears.


More Hints from More Bills in the SCO Bankruptcy | 286 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: feldegast on Sunday, May 18 2008 @ 01:54 AM EDT
So they can be fixed

My posts are ©2004-2008 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

What is a Tax Warrant ...
Authored by: Anonymous on Sunday, May 18 2008 @ 02:04 AM EDT
See this NC state FAQ on the subject "what is a Tax Warrant?" .
What is a Tax Warrant?

A tax warrant is a request to levy on and sell any personal property owned by a taxpayer who has failed to pay tax, penalty, interest and fees that have been assessed by the NC Department of Revenue....

[ Reply to This | # ]

Off Topic
Authored by: grouch on Sunday, May 18 2008 @ 02:30 AM EDT
Please place off-topic commentary here. Clickable links are helpful.


-- grouch

[ Reply to This | # ]

News picks
Authored by: ankylosaurus on Sunday, May 18 2008 @ 02:33 AM EDT
Dicussions about items on the RHS of the Groklaw home page.

The Dinosaur with a Club at the End of its Tail

[ Reply to This | # ]

Liquidation Analysis
Authored by: Anonymous on Sunday, May 18 2008 @ 03:03 AM EDT
The bulk of the time was under the header "Liquidation Analysis". What is that? How to run through all your cash so Novell can't get any?
Where I live, "liquidation" is paying off the bills with whatever money is left and winding the company up for good. At this point, any serious re-organisation plan for SCO has to put that at the top of the list of options. That's just being realistic. If they don't present a liquidation plan to the court, I imagine the court will appoint someone who will. There are a lot of details that have to be taken care of in order to liquidate, so I would expect a lot of hours were accounted for by that.

If you look at Berger Singerman's Exhibit A, what do you suppose the "warrant idea" might be?
A warrant is a type of bond which is often linked to share options. It's probably something to do with the details for how the SNCP plan would be structured. (Although I don't think that plan will ever actually happen). SNCP could get bonds (warrants) which would carry a high interest, plus a right to convert them to shares at an agreed price at a later date.

Telephone Call to H. Swaim, Esq., Counsel for Red Hat (...)

Review Correspondence from T. Landau Regarding SUSE Arbitration

I imagine the lawyers were sounding out Red Hat and Suse about settlement terms. A settlement with all parties (including Red Hat and Suse) is probably necessary to allow liquidation to be finalised. All Red Hat really wanted was a declaration that they don't infringe on any of SCO's rights. Since the judge has ruled that any Unix copyrights that matter belong to Novell, that shouldn't be too hard to work out or very expensive either. Suse might be happy to take a declaration as well, considering that there isn't going to be any money to go around anyway. (The Suse issue is separate from Novell's monetary claims with SCO).

Exchange E-Mail Communications with S. McNutt Regarding Claim of York 0.10 (...)

*Claim of York*??! What claim? Are they asserting a claim?

SCO did say they "promised" to pay York. Someone at York wants their money. It is possible that someone at SCO made a personal promise "on his word of honour" to see that York got paid. If they did, that was a bad idea, because nobody at SCO was authorised to make any such promises without the bankruptcy court's permission.

This issue sounds interesting, because in the past it would have been more SCO's style to just say "so long, suckers" with that sort of problem. However, perhaps someone at SCO is thinking of their post-SCO career where they can't afford to have an influential money-man unhappy with him. Fleecing the public is OK, just don't try to short-change people who have lots of money. SCO has to at least go through the motions of trying to pay York.

[ Reply to This | # ]

Hmmmm, this sure looks like more proof of ...well,... something.
Authored by: Anonymous on Sunday, May 18 2008 @ 03:27 AM EDT
But I don't know what.

[ Reply to This | # ]

Liquidation and Warrants; The Novell Exception
Authored by: bezz on Sunday, May 18 2008 @ 06:34 AM EDT

Liquidation and warrants appear to be stock-related issues in SNCP's offer to take SCO private. Under the February MOU, we know there was a proposal for SCO to issue preferred stock that SNCP would buy for $5 million. On page 2:

US$5 millon for the purchase of a new class of Preferred Stock (the "Series A Preferred") to be issued by SCO which shall have the liquidation, voting and distribution preferences described hereafter. At its option, the holder of the Series A Preferred wil be able to convert the Series A Preferred into between 51 % and 85% of the then-outstanding shares of common stock of SCO, as described in the next bullet. [...]

Here is an example of how a liquidatio n preference is used in a preferred stock context.

Preferred stock can get certain benefits in the event it is ever liquidated, and that term includes selling at a profit; liquidation is not exclusively a winding down (e.g. Chapter 7) event and appears, in this case, to be in a preferred stock context.

A warrant offers an guaranteed right to purchase additional stock in the future at a predetermined price. This looks like SCO attempting to sweeten the deal by offering an option to purchase more stock in the future at a price likely above what it is now. For this to be of value to SNCP, the price of the stock would have to rise above the warrant value.

The liquidation preference is standard for any investment in a risky company (one in Chapter 11 facing huge legal liabilities is a high-risk investment). SCO discussing a warrant, however, could mean SNCP didn't offer enough cash up front, and SCO had to offer additional future stock options on the premise the reorganized, private company's stock will rise.

Take note of a line item on Berger Singerman's bill for 4/14/2008


[4.30 hours]

The "Novell Exception" was also discussed on 4/1/2008. This is an interesting tidbit. We know the previous York deal sought to sell Novell assets. The first SNCP deal was so poorly and incompletely presented that the possibility it also sought to sell Novell's assets also existed. And then we have Mr. Spector's ill-advised assertion that he believed it was OK to sell Novell's assets and let Novell fight with the buyer, at a later date and different venue, to get them back. That raised objections from Novell and the Trustee.

SCO needs to present the bankruptcy court with a plan that states specifically what assets it is selling, and they can not be anything owned by Novell. I doubt an APA in the form "we propose to sell A, B and C, except for those assets owned by Novell" will fly if they do not state what is excluded. The burden is now on SCO to identify specifically which assets are being sold. Novell has the Utah Preliminary Summary Judgments upon which to rely in any objection. And I doubt the Trustee will be receptive to any APA that requires Novell to work out the details of what it owns with the buyer at a later date.

SCO is treading on thin ice. We'll have to look at the MOU when it is submitted. It looks like they are paying attention to the issue of selling Novell assets now, but we will see if they are doing so with specificity or not, resulting in more objections and delay.

[ Reply to This | # ]

"usual suspects", as Judge Dale Kimball
Authored by: Anonymous on Sunday, May 18 2008 @ 06:45 AM EDT
"usual suspects", as Judge Dale Kimball refers to the final
scene in Casablanca
where Rick Blaine (Bogart) kills Major Strasser and
Captain Louis Renault (Claude Rains), of the French Vichy
police saves Rick's life by telling his subnormals
to "round up the usual suspects."

The meaning of "usual suspects" is much more than a the
word as defined in a dictionary would indicate by implying
that not only is Kimball aware of all of SCO doings, that
he is opposed to them, opposes them, and that he has
informed SCO of this with out saying any improper word or
shown any bias.

[ Reply to This | # ]

  • Or... - Authored by: sproggit on Sunday, May 18 2008 @ 05:55 PM EDT
NOL ---Tax loss carryforward
Authored by: edfair on Sunday, May 18 2008 @ 07:16 AM EDT
Sure, there is a value there. A company paying, for example, 20% in taxes, could
afford to pay somewhat under 20 million for 100 million of accumulated tax loss
and be at a break even point. For every dollar less in purchase price they save
20 cents in taxes.
How much have they lost? And where did it come from? I can remember the string
of losing quarters stretching back to almost the "big bang" but there
had to be something there to lose, you can't lose money out of current sales.
I would suspect that IBM could use the the tax writeoff. They have enough taxes
to justify something like that. But I would also expect that they would let the
assets and business dribble to nothing so they pick up no other liabilities,
such as employees.
For lack of a better conspiracy theory I'll try this one. It might explain their
seeming indifference to the asset drain.

Ed Fair -- the "Over-the-hill" one

[ Reply to This | # ]

Darl's teleconference - a theory?
Authored by: Cassandra on Sunday, May 18 2008 @ 08:55 AM EDT
And why would Stephen Norris and Darl McBride be involved in a teleconference with the attorney about the new deal, if McBride is allegedly being thrown overboard, if the deal goes through?

Maybe Darl is begging not to be thrown overboard, if the deal goes through?

[ Reply to This | # ]

At this point I wish I knew more about business financing
Authored by: The Mad Hatter r on Sunday, May 18 2008 @ 08:57 AM EDT

It does look strange, but without having training in business financing it's
impossible to be sure. Does anyone here have this sort of knowledge, or know
anyone who does?


[ Reply to This | # ]

More Hints from More Bills in the SCO Bankruptcy
Authored by: Steve Martin on Sunday, May 18 2008 @ 09:02 AM EDT

Second, why is Stuart Singer of Boies Schiller involved in the MOU for the Stephen Norris deal?

Good question indeed. In the Bankruptcy Court's December 6, 2007 Order granting BS&F permission to represent TSG, the Court wrote

ORDERED that pursuant to section 327(c) of the Bankruptcy Code, the Debtors are authorized to employ and retain BSF as special counsel, effective nunc pro tunc to the Petition Date, on the terms set forth in the Appplicaton and the Declaration, provided, however, that BSF shall not be permitted to represent the Debtors in conducting their bankruptcy cases;
(emphasis added)

So why indeed is a BS&F lawyer involved in any part of the bankruptcy proceedings? What am I not understanding?

"When I say something, I put my name next to it." -- Isaac Jaffe, "Sports Night"

[ Reply to This | # ]

Liquidation Analysis
Authored by: Anonymous on Sunday, May 18 2008 @ 11:12 AM EDT
Free drinks at the bar ?

[ Reply to This | # ]

SCO ain't dead yet
Authored by: Anonymous on Sunday, May 18 2008 @ 04:03 PM EDT
As long as the current management is still in charge and has any money they can
spend, this is not over. They are trying to pull a fast one. I don't know what
but I expect anything, including things that I cannot think of. Expect a
surprise before the results of the Novell vs SCO decision is finished.

[ Reply to This | # ]

Warrants are separable securities--think "warrant" as "guaranteed right to buy."
Authored by: Anonymous on Sunday, May 18 2008 @ 07:01 PM EDT
"In finance, a warrant is a security that entitles the holder to buy stock
of the company that issued it at a specified price, which is usually higher than
the stock price at time of issue.

Warrants are frequently attached to bonds or preferred stock as a sweetener,
allowing the issuer to pay lower interest rates or dividends. They can be used
to enhance the yield of the bond, and make them more attractive to potential
buyers. Warrants can also be used in private equity deals. For instance, it was
a common practice during the height of the dot-com bubble for a landlord of
sought-after commercial real-estate to demand warrants from high-tech startups
as part of the lease agreement. Frequently, these warrants are detachable, and
can be sold independently of the bond or stock.

Corporations issue warrants to enhance the future value of their stock to the
people holding it."

[ Reply to This | # ]

Utah state court litigation
Authored by: Anonymous on Monday, May 19 2008 @ 07:03 AM EDT
I'm just guessing here, but this item is dated before the 4 day SCO v. Novell
trial. I'm betting that they mistakenly said Utah state court when they meant
Federal District Court for the District of Utah.

[ Reply to This | # ]

Speculation: Utah Court Subpoena refers to the "Madtrax Group" fraud trials
Authored by: Anonymous on Monday, May 19 2008 @ 09:18 AM EDT
One likely source for subpoenas to SCO would be the Marc Jenson / MadTrax Group / Mark Robbins civil and criminal fraud trials now warming up. A prosecutor and the plantiffs might be seeking to examine financial bona fides Mark Robbins provided SCO, because both Jenson and the [allegedly] defrauded investors are both seeking recovery from Robbins. The state criminal fraud trial of Jenson is scheduled for the end of May, and the federal civil case, Hanson v. Jenson, et al. is in motion practice. The SL Trib reporting implies there are multiple civil cases, some of which may be state instead of federal actions.

Below are excerpts from a very recent SL TRIB news item regarding Madtrax and the fallout from the related investment frauds:

Judge rejects plea deal for Jenson in bicycle fraud case
Third District Judge Robin Reese said Thursday that prosecutors didn't work hard enough to make restitution part of the deal. .....
Jenson was raising money for another businessman (ed. Mark Robbins) who had hoped to sell bikes to the Mormon church for use by missionaries. Prosecutors say Jenson was still raising money, even after Brunswick sold Mongoose to Pacific Cycle Inc. of Madison, Wis. ....
"I just don't feel comfortable with it," said Reese, who added that Jenson was "still able to live a lavish lifestyle." .......
A trial is set for May 27. Jenson [sic in original] he doesn't owe any money and "the victims aren't what they appear to be." In civil litigation tied to the bike deal, Jenson has said the business partner [ ed. Robbins?] owes the money. "Our plea agreement with the state of Utah basically left that issue to be resolved with the civil courts," said Rebecca Hyde, one of Jenson's attorneys. "Judge Reese wasn't willing to allow us to leave it up to the civil courts." .......

[ Reply to This | # ]

More Hints from More Bills in the SCO Bankruptcy
Authored by: Anonymous on Monday, May 19 2008 @ 12:01 PM EDT
Bills to SCO.

So when is Groklaw going to submit it's bill on behalf of all the researchers
that have been so busy keeping SCO honest these last five years.

Compared to the stuff listed for Dorsey & Whitney LLP, Groklaw and it's
contributors have done ten tons more work easily. No wonder they kept thinking
IBM was running Groklaw. They can't conceive of people volunteering this much
work. If they had to pay for this research, I shudder to think of what the bill
would be.

[ Reply to This | # ]

What happens when Novel wins their case?
Authored by: comms-warrior on Monday, May 19 2008 @ 09:13 PM EDT
Will Novel ask for payment? If so, does it become a secured creditor to the
haggard remains of the SCO corpse?

Can it start criminal prosecutions agains the SCO board?

Soooo many questions and not enough time.. :)

[ Reply to This | # ]

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