We have some new filings from the BK docket, including a notice of the hearing scheduled for this coming Thursday in Delaware, and from the Novell Appeal docket we have a motion by The SCO Group to expedite the appeal, which we have as text.
Update: No longer Members Only.
01/26/2009 669 Application for Compensation /Fifteenth Monthly Application for Compensation and Reimbursement of Expenses of Pachulski Stang Ziehl & Jones LLP, as Co-Counsel to the Debtors and Debtors in Possession, for the Period from November 1, 2008 through November 30, 2008 Filed by Pachulski Stang Ziehl & Jones LLP. Objections due by 2/17/2009. (Attachments: # 1 Notice # 2 Exhibit A # 3 Certificate of Service with service list) (O'Neill, James) (Entered: 01/26/2009)
01/27/2009 670 Certificate of No Objection to Motion of Petrofsky for an Order Enforcing Electronic Text Requirement (related document(s) 659 ) Filed by Alan P. Petrofsky. (Attachments: # 1 Exhibit A: Modified Proposed Order # 2 Exhibit B: Blacklined order # 3 Exhibit C: Email dated January 23, 2009 from Lynzy Oberholzer, including the three attached PDF files # 4 Exhibit D: "Disclosure Statement in Connection with Debtors' Amended Joint Plan of Reorganization", including all of its exhibits (which include the plan itself), with accurate electronic text.) (Petrofsky, Alan) (Entered: 01/27/2009)
01/27/2009 671 Certificate of No Objection Regarding Debtors' Motion to Approve the Expansion of the Scope of Retention of Tanner LC to Prepare Consolidated Federal Income and State Income Tax Returns for The SCO Group, Inc. and to Prepare the Stand-Alone State Income Tax Return of SCO Operations, Inc. for the Fiscal Year Ending October 31, 2008 Nunc Pro Tunc to December 3, 2008 (related document(s) 645 ) Filed by The SCO Group, Inc.. (Attachments: # 1 Certificate of Service & Service List) (Makowski, Kathleen) (Entered: 01/27/2009)
01/27/2009 672 Certification of Counsel Regarding Omnibus Order Approving Certain Quarterly Fee Applications (related document(s) 579 , 588 , 609 , 636 , 651 , 652 ) Filed by The SCO Group, Inc.. (Attachments: # 1 Exhibit A) (O'Neill, James) (Entered: 01/27/2009)
01/27/2009 673 Notice of Agenda of Matters Scheduled for Hearing Filed by The SCO Group, Inc.. Hearing scheduled for 1/29/2009 at 02:00 PM at US Bankruptcy Court, 824 Market St., 6th Fl., Courtroom #3, Wilmington, Delaware. (Attachments: # 1 Exhibit A # 2 Certificate of Service and Service List) (O'Neill, James) (Entered: 01/27/2009)
01/27/2009 674 Objection to Certificate of No Objection to Motion of Petrofsky for an Order Enforcing Electronic Text Requirement (related document(s) 659 , 670 ) Filed by The SCO Group, Inc. (Makowski, Kathleen) (Entered: 01/27/2009)
01/27/2009 675 Amended Notice of Agenda of Matters Scheduled for Hearing (related document(s) 673 ) Filed by The SCO Group, Inc.. Hearing scheduled for 1/29/2009 at 02:00 PM at US Bankruptcy Court, 824 Market St., 6th Fl., Courtroom #3, Wilmington, Delaware. (Attachments: # 1 Certificate of Service and Service List) (Makowski, Kathleen) (Entered: 01/27/2009)
01/27/2009 676 Certificate of Service re: Objection to Certificate of No Objection to Motion of Petrofsky for an Order Enforcing Electronic Text Requirement (related document(s) 674 ) Filed by The SCO Group, Inc.. (Makowski, Kathleen) (Entered: 01/27/2009)
And here is the motion from the Appeal docket, as text.
No. 08-4217
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
THE SCO GROUP, INC.,
Plaintiff-Appellant,
vs.
NOVELL, INC.,
Defendant-Appellee.
On Appeal from the United States District Court
for the District of Utah
Hon. Dale A. Kimball, Presiding
No. 2:04-CV-00139-DAK
APPELLANT'S UNOPPOSED MOTION TO EXPEDITE
APPEAL
Plaintiff-Appellant, The SCO Group, Inc. ("SCO"), respectfully
moves the Court to expedite the instant appeal. In support of its
Motion, SCO states:
(1)
1. In addition to the instant action against Defendant-Appellee
Novell, Inc. ("Novell"), SCO brought two other actions in federal
court to enforce, among other rights, its intellectual property and
contract rights concerning UNIX, one of the most popular computer
operating systems in the world; and an action has been brought
against SCO in federal court concerning similar issues.
2. In all of these actions, copyrights in the UNIX operating
system are at issue in some or all of the claims and counterclaims.
Until this Court addresses the issue of the ownership of these UNIX
copyrights, all of these related cases can proceed only in
piecemeal fashion, if at all.
3. In addition, SCO is currently involved in Chapter 11
bankruptcy proceedings in Delaware and recently filed a proposed
reorganization plan. The Bankruptcy Court will address the plan
during the next few months. A significant aspect of that plan is
designed to protect SCO and keep it operating as a going concern
until this appeal is resolved. Accordingly, the sooner this appeal
is resolved, the sooner the four related cases can proceed in an
orderly and expeditious manner and the sooner SCO will be able to
execute its plan to successfully emerge from Chapter 11
proceedings.
4. In March 2003, SCO brought suit against International
Business Machines Corp. ("IBM") in the United States District Court
for the District of
(2)
Utah. The district judge presiding over the action against IBM,
the Honorable Dale A. Kimball, is also the district judge who
presided over the instant action against Novell, which was filed in
January 2004. In March 2004, SCO brought suit against AutoZone,
Inc. ("AutoZone"), in the United States District Court for the
District of Nevada, alleging copyright infringement of certain UNIX
copyrights.
5. In the action against IBM, after the parties had fully
briefed and argued some ten motions for summary judgment,
comprising well over one thousand pages of briefing and fifty
thousand pages of exhibits, the district court decided in 2007 to
resolve certain summary judgment motions in the Novell case prior
to resolving the pending matters in the IBM case. The summary
judgment rulings in the instant case had the effect of disposing of
some but not all of the claims and counterclaims in the pending IBM
case.
6. In the action against AutoZone, in August 2004, the district
court stayed the action pending resolution of the actions against
IBM and Novell in Utah but recently decided to lift the stay
effective December 31, 2008. Although SCO urged the district court
in Nevada to continue the stay until after the resolution of this
appeal, to avoid duplication of efforts and to promote judicial
efficiency, the
(3)
court determined to lift the stay. The court recognized,
however, that if there is a reversal in this appeal, "we'll have to
redo, no doubt about it."
7. In August 2003, Red Hat, Inc. ("Red Hat") brought suit
against SCO in the United States District Court for the District of
Delaware. The district court in that case has stayed the action
pending resolution of matters in the actions against IBM and
Novell.
8. In September 2007, SCO filed for bankruptcy under Chapter 11
in the United States Bankruptcy Court for the District of Delaware.
SCO's pending actions against Novell, IBM, and AutoZone have been
identified as among SCO's principal assets. The Bankruptcy Court
has observed, and SCO and its creditors agree, that the resolution
of the actions against Novell and IBM bears directly on SCO's
business going forward. In opposing one of SCO's requests for an
extension of its exclusivity period in the bankruptcy cases,
Novell's counsel argued that the instant appeal could take "years"
to resolve and that the Bankruptcy Court should simply let the
"chips fall where they may" relative to SCO. The Bankruptcy Court
expressly disagreed.
9. Expedited resolution of this appeal is critical to the
ability of SCO to move all of these cases forward in an efficient
manner and to more successfully execute on its business plans going
forward. Although SCO has made significant
(4)
progress in resolving certain issues and claims in the Novell
case and other claims against the company during the pendency of
its bankruptcy proceedings, a prompt resolution of this appeal is
in the best interest of all parties.
10. In sum, the resolution of several pending federal court
actions, the scope and extent of SCO's future business, and the
disposition of issues in the bankruptcy cases all turn on the
resolution of the instant appeal. The expedited resolution of this
appeal will facilitate a sensible and efficient resolution of the
action against AutoZone, and will expedite the lifting of the stays
in SCO's action against IBM and Red Hat's action against SCO and
the resolution of the issues raised therein.
11. SCO therefore asks the Court to expedite this appeal. SCO
proposes as an expedited schedule the following, with no extensions
of time permitted:
March 6, 2009 |
SCO's opening brief |
April 6, 2009 |
Novell's opposition brief |
April 20, 2009 |
SCO's reply brief |
SCO further and respectfully requests that the Court schedule oral
argument on the earliest practicable date after briefing is
complete on April 20, 2009.
12. Novell does not oppose SCO's request for an expedited appeal
nor the schedule SCO has proposed. Novell does seek to reserve the
right to seek an
(5)
extension of its time to file its opposition brief. Seeking
expedition, however, SCO asks that the Court impose the foregoing
schedule without any extensions of time.
Respectfully submitted on this 23rd day of January, 2009.
/s/ Edward Normand
David Boies
Robert Silver
Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
[email addresses]
Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE, PC
[address]
[phone]
[fax]
[email addresses]
Stuart Singer
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
[email address]
Devan V. Padmanabhan
DORSEY & WHITNEY LLP
[address]
[phone]
[fax]
[email address]
Attorneys for Plaintiff-Appellant, The SCO Group,
Inc.
(6)
CERTIFICATE OF SERVICE
I, Edward Normand, hereby certify that on this 23rd day of
January, 2009, a true and correct copy of the foregoing
APPELLANT'S UNOPPOSED MOTION TO EXPEDITE APPEAL was
electronically filed with the court and forwarded via electronic
mail to the following recipients:
Thomas R. Karrenberg
Heather M. Sneddon
ANDERSON & KARRENBERG
[address]
Michael A. Jacobs
George C. Harris
David E. Melaugh
MORRISON & FOERSTER
[address]
Counsel for Defendant-Appellee Novell, Inc.
/s/ Edward Normand
Edward Normand
Boies, Schiller & Flexner LLP
[address]
[phone]
[fax]
[email address]
(7)
CERTIFICATE OF DIGITAL SUBMISSION
The undersigned certifies with respect to this filing that no
privacy redactions were necessary. This APPELLANT'S UNOPPOSED
MOTION TO EXPEDITE APPEAL submitted in digital form is an exact
copy of the written document filed with the Clerk. The digital
submission has been scanned for viruses with the most recent
version of a commercial virus scanning program (using Symantec
Antivirus which is updated weekly) and, according to the program,
is free of viruses.
Dated: January 23, 2009
/s/ Edward Normand
Edward Normand
Boies, Schiller & Flexner LLP
[address]
[phone]
[fax]
[email address]
(8)