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| Dear Judge Gross - A Letter from SCO - Updated 4Xs: IBM Responds & Novell too & SCO Files Amendments to 1995 APA |
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Friday, July 31 2009 @ 01:49 PM EDT
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SCO has sent a letter to Judge Gross, in which it agrees to an auction and the appointment of someone to oversee the auction:
07/31/2009 - 878 - Letter to the Honorable Kevin Gross Filed by The SCO Group, Inc.. (O'Neill, James) (Entered: 07/31/2009)
They also say they will accept "the involvement of an examiner under 11 USC section 1104 to advise the Debtors' board and to report to the Court on the sale process and the outcome of any auction." They suggest this is harmonious with comments made at the hearing in closing arguments, but if that were so, why a letter? Because, I suspect, they worry it didn't go so well at the hearing. They also say this should alleviate concerns, but I have a few left. Like, what exactly are they selling? Novell's assets again? Where's the rehab plan after the sale? Who pays IBM and Novell? What about the poison pill? The last-minute Amendment that no one had time to consider at the last hearing? Who's in charge? And some of us remember a very odd auction in Florida.
Update: IBM's Response: IBM has responded promptly:
07/31/2009 - 879 - Letter dated July 31, 2009 from Richard Levin, Esq. to the Honorable Kevin Gross (related document(s) 878 ) Filed by IBM Corp.. (Silverstein, Laurie) (Entered: 07/31/2009)
IBM points out that the appointment of an examiner would require a motion and there isn't any such motion. There is, however, a motion requesting the appointment of a trustee to convert the cases to Chapter 7. The court can instead appoint a trustee in Chapter 11 under USC Section 1112(b). That is properly before the court. Second, IBM continues, the proposed duties of the examiner in SCO's request are only to advise the board and report to them about the sale of the assets "offered for sale in the current motion". What? What? What? That leaves the board in control of evaluating proposals. IBM would like a neutral to oversee the process, not SCO's board. IBM points out the following:
The offer from LNS Acquisition LLC that was introduced into evidence at the hearing last Monday, July 27, 2009, was not limited to the assets offered for sale in the current sale motion. IBM believes that a full and fair auction can be conducted only if the seller considers all bids for the debtors' assets, not just those selected by debtors.
I see IBM may have concern about flimflam auctions. So it suggests, should the court wish to appoint an examiner, that the role be expanded beyond SCO's proposed limits:
IBM's concern about the proposal to limit the examiner's role could be addressed by an order under the second half of Section 1106(b) ("any other duties of the trustee that the court orders the debtor in possession not to perform") expanding the role. As long as the Court's order made clear that the examiner would have all the rights, powers, functions and duties of a trustee with respect to the sale of any or all assets of the estates outside the ordinary course of business and with respect to the settlement of any litigation and that the debtors in possession were prohibited from participating in any aspect of any such sale or settlement except as specifically requested by the examiner, IBM would not object to the appointment of an examiner. IBM believes, however, that crafting such an order is an unnecessary distraction when a simple order for the appointment of a trustee is pending before this Court and would fully suffice.
Whew. See why you want your attorney to be a true expert in the specialty field you are involved in litigation in? Richard Levin, the Cravath attorney who wrote this letter, had to respond very fast to SCO's proposal. Both letters were written and filed with the court today. That means Levin had to know the bankruptcy law so well he could immediately remember a section of the law to be able to offer an alternative to SCO's proposal, just in case the judge was tempted, on top of pointing out the odd bits of the proposal. It's stunning lawyering to me. And it's why you always ask a lawyer you are thinking of hiring, have you handled this type of case before? And why is it SCO doesn't want a bid from LNS Acquisitions? And why does IBM seem to want its bid considered? I don't know, but I think we can now guess that the picture is more complex than we originally suspected. Is this not fun to watch? I love this stuff.
Update: Novell's Response:
Novell has filed a letter [PDF] now too. It has this on its mind: We have received the Debtors' letter of July 31, 2009, offering to hold an auction of certain of Debtors' assets supervised by an examiner. No motion seeking anything like that relief is before the Court. Even if it were, Novell does not believe that this proposal satisfies Novell's concerns.
I gather Novell has some of the same concerns I mentioned, like what exactly is going to be sold? For how much? And:
Novell also expressed well-founded concerns over the nature of the assets sold and retained, the interrelationship between those assets and the Asset Purchase Agreement with Novell, and the business judgment of management and their fidelity to the interests of creditors. The Debtors' July 31 letter does not solve those problems. Instead it tends to confirm Novell's position that the Debtors' management has employed myopic judgment, trying to hang on to its alleged claims and a portion of its Mobility business to the exclusion of all other concerns.
Novell therefore opposes the new SCO brainstorm and asks the court to rule on the motions already before the court, "submitted to the Court after the conclusion of evidence and arguments on July 27". Here's the docket entry for Novell and in the meantime, SCO has filed the amendments we heard about at the hearing. Well, I only remember one amendment being mentioned, but there are two:
07/31/2009 - 880 - Letter to Judge Gross Regarding Debtors' Letter of July 31, 2009 Regarding Auction of Assets Filed by The SCO Group, Inc.. (Greecher, Sean) (Entered: 07/31/2009)
07/31/2009 - 881 - Notice of Service of Amendments 1 and 2 to September 19, 1995 Asset Purchase Agreement Between Novell, Inc. and the Santa Cruz Operation, Inc. (related document(s) 815 ) Filed by The SCO Group, Inc.. (Attachments: # 1 Amendment 1# 2 Amendment 2# 3 Certificate of Service and Service List) (Makowski, Kathleen) (Entered: 07/31/2009)
As you can see, the first filing is listed as having been done by SCO, but it's not. It's by Novell's attorney, Adam Lewis, at Morrison & Foerster. It's harder for the clerk to get it right when it's just a letter. Motions and other court filings clearly have headers that identify what the document is and whose document it is. With a letter, it's not as clear. We have Amendment 1 [PDF] already, and Amendment 2 is filed with the SEC, so I won't pay to get them again. But why? SCO is filing Amendments 1 & 2 to the 1995 Novell/Santa Cruz APA? Now? Whatever for? I will make one devilish guess. It would like the judge to consider how wonderful its prospects are if it can only get a turnaround on appeal in the Novell , where it believes Amendment 2 is vital to its success. The judge clearly stated that such evaluations would not be in this mix, but you know SCO. If the judge tells them at a hearing their time is up, they say, "No, it's not." Alternatively, the angelic interpretation would be that since they say this filing is in connection with docket number #815, the proposed sales agreement, it could mean that SCO is a such a stickler for doing things right, it noticed that it attached the APA but not the two amendments, it now wishes to be thorough, cross every T and dot all the I's because this is SCO, and that's how they roll.
Update 4: Now that I got all the documents at least made available, and briefly described, I had time to think a little, and I see another reason for the SCO letter, aside from what has been so ably said by IBM and Novell. I recall Mr. Levin at the Jund 15th hearing, IIRC, asking SCO if the board had approved the last-minute proposal. He said yes, but of course they couldn't have approved that exact document, because the story was it was only signed as they all walked into the courtroom. Darl said something to the effect that the board had approved the idea of it, a parameter of what would be OK. No doubt the same question would be asked again, so this makes it official, in case that would be a stumbling block to the judge, that the board has now OK'd the sale. I don't know if this means they OK'd the last minute amendment, because I don't see it referred to by SCO. But I'm working mighty fast, so it's possible I missed something. Or else SCO has. Did that amendment ever get filed with the court so the public can view it?
Here's SCO's letter as text, and after that IBM's, and then Novell's [the links will take you directly there]:
**************************
[Pachulski Stang letterhead]
James E. O'Neill
July 31, 2009
CONFIDENTIAL
The Honorable Kevin Gross
United States Bankruptcy Court for the
District of Delaware
[address]
Re: The SCO Group, Inc, et al.
Chapter 11 Case No. 07-11337 (KG)
Dear Judge Gross:
The Debtors have now had a chance to consult with their board of directors and wanted to inform the Court that the Debtors would consent to an auction of the subject assets (i.e., those offered for sale in the current motion), and the appointment of an examiner to oversee the sale should the Court so direct. The Debtors agree to the involvement of an examiner under 11 U.S.C. § 1104 to advise the Debtors' board and to report to the Court on the sale process and the
outcome of any auction. The appointment of an examiner should
alleviate the concerns expressed at the hearing that a third party would need to be involved in the process to make sure it is fair to all bidders.
We are sending a copy of this letter to the United States Trustee and the other movants (Novell and IBM). The Debtors believe that this proposal is in line with comments made at trial, including some made during closing arguments.
The Hon. Kevin Gross
July 31, 2009
Page 2
Mr. Spector and I wanted to convey this information to the Court on behalf of the Debtors. We appreciate the Court's consideration and patience in these matters. The Debtors look forward to moving ahead with the sale in this fashion and will work to accommodate the parties' schedules if the Court permits them to proceed in this manner.
Respectfully,
[signature]
James E. O'Neill
cc: William K. Harrington, Esquire (via email)
Joseph J. McMahon, Jr. Esquire
Adam A. Lewis, Esquire (via email)
Richard Levin, Esquire (via email)
Ryan E. Tibbitts, Esquire (via email)
Arthur J. Spector, Esquire (via email)
*****************************
*****************************
[Letter head]
CRAVATH, SWAINE & MOORE LLP
July 31, 2009
In re SCO Group, Inc., Chapter 11 Case No,
07-11337
Dear Judge Gross:
We have received a copy of the letter sent to you today by SCO Group,
Inc, in this matter. On behalf of our client International Business Machines
Corporation
(IBM), we note the following in response.
First, the appointment of an examiner requires a motion under 11 U.S.C.
§ 1104(c). There is no such pending motion, The request for the
appointment of a
trustee, by contrast, is the subject of the pending motions to convert the
cases under 11
U.S.C. § 1112(b). Under 11 U.S.C. § 1104(a)(3), the Court may order
the appointment of
a trustee in lieu of converting the cases. Unlike the proposed consent to the
appointment
of an examiner, the request for the appointment of a trustee is properly
before the Court.
Second, the proposed consent to the appointment of an examiner limits the
scope
of the examiner's duties to advising the debtors' board of directors and
reporting to the court on
"an auction of the subject assets (i.e., those offered for sale in the current
motion)", The offer
from LNS Acquisition LLC that was introduced into evidence at the hearing last
Monday, July 27,
2009, was not limited to the assets offered for sale in the current sale
motion. IBM believes that
a full and fair auction can be conducted only if the seller considers all bids
for the debtors'
assets, not just those selected by the debtors.
Third, the question of the scope of the assets to be included in an auction
exemplifies and underscores why IBM believes that the appointment of an
examiner does
not adequately address the concerns stated at the hearing. The proposed
examiner's role
would be limited. Consistent with the statutory description of an examiner's
duties in 11
U.S.C. § 1106(b), the examiner would only "advise the Debtors' board and
to report to
the Court on the sale process and the outcome of any auction", thus leaving
the debtors'
boards in complete control of the process and the evaluation of alternative
proposals. As
(1)
we emphasized at the hearing, we believe it is important at this very late
stage in these
chapter 11 cases that a neutral control the process and the decision
making.
IBM's concern about the proposal to limit the examiner's role could be
addressed by an order under the second half of § 1106(b) ("any other
duties of the trustee
that the court orders the debtor in possession not to perform") expanding the
role. As
long as the Court's order made clear that the examiner would have all the
rights, powers,
functions and duties of a trustee with respect to the sale of any or all
assets of the estates
outside the ordinary course of business and with respect to the settlement of
any litigation
and that the debtors in possession were prohibited from participating in any
aspect of any
such sale or settlement except as specifically requested by the examiner, IBM
would not
object to the appointment of an examiner. IBM believes, however, that crafting
such an
order is an unnecessary distraction when a simple order for the appointment of
a trustee is
pending before this Court and would fully suffice.
Sincerely,
/s/ Richard Levin
Richard Levin
The Honorable Kevin Gross
United States Bankruptcy Judge
United States Bankruptcy Court for the District of Delaware
824 N. Market St., 6th Floor
Wilmington, Del. 19801
Copy to: Arthur J. Spector, Esq.
Copy to: Jamie O' Neill, Esq.
Copy to: William K. Harrington, Esq.
Copy to: Joseph J, McMahon, Esq.
Copy to: Adam A. Lewis, Esq,
(2)
*********************
*********************
*********************
MORRISON | FOERSTER
[Letter head]
July 31, 2009
Honorable Kevin Gross
United States Bankruptcy Court
District of Delaware
824 North Market Street, 6th Floor
Wilmington, DE 19801
Re:
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In re SCO Group, Inc. et al.
United States Bankruptcy Court
District of Delaware
Case No. 07-11337 (KG)
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Dear Judge Gross:
We have received the Debtors' letter of July 31, 2009, offering to hold an
auction of certain
of Debtors' assets supervised by an examiner. No motion seeking anything like
that relief is
before the Court. Even if it were, Novell does not believe that this proposal
satisfies
Novell's concerns.
We understand Debtors' proposal to be that the contemplated auction would
be limited to the
assets Debtors proposed to sell in the Third Sale Motion. As the evidence and
arguments
presented in the various objections to the sale motion, in the motions to
convert, and at the
July 27 hearing on those motions indicate, the price of the particular assets
being sold was
not the only problem with the Third Sale Motion. Novell also expressed well-
founded
concerns over the nature of the assets sold and retained, the
interrelationship between those
assets and the Asset Purchase Agreement with Novell, and the business judgment
of
management and their fidelity to the interests of creditors. The Debtors' July
31 letter does
not solve those problems. Instead, it tends to confirm Novell's position that
the Debtors'
management has employed myopic judgment, trying to hang on to its alleged
claims and a
portion of its Mobility business to the exclusion of all other concerns.
(1)
MORRISON | FOERSTER
Honorable Kevin Gross
July 31, 2009
Page Two
Novell therefore opposes the Debtors' revised proposal and asks the Court
to rule on the motions that were
submitted to the Court after the conclusion of evidence and arguments on July
27.
Sincerely,
[Signature]
Adam A. Lewis
cc:
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William K. Harrington, Esq. (via email)
Richard Levin, Esq. (via email)
Joseph J. McMahon, Jr, Esq. (via email)
James E. O' Neill, Esq. (via email)
Arthur J. Spector, Esq. (via email)
Ryan E. Tibbitts, Esq. (via email)
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(2)
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| Authored by: complex_number on Friday, July 31 2009 @ 02:00 PM EDT |
go here
---
Ubuntu & 'apt-get' are not the answer to Life, The Universe & Everything which
is of course, "42"
[ Reply to This | # ]
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- Correction - As if PJ would make any - Authored by: Anonymous on Friday, July 31 2009 @ 02:34 PM EDT
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- as employed myopic judgment - Authored by: Erwan on Friday, July 31 2009 @ 04:00 PM EDT
- Not really a correction... - Authored by: Lazarus on Friday, July 31 2009 @ 04:04 PM EDT
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- no such pending motion, --> motion. - Authored by: achurch on Saturday, August 01 2009 @ 07:48 PM EDT
- Where's #3? - Authored by: Anonymous on Saturday, August 01 2009 @ 11:28 PM EDT
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| Authored by: complex_number on Friday, July 31 2009 @ 02:01 PM EDT |
You know the rules...
---
Ubuntu & 'apt-get' are not the answer to Life, The Universe & Everything which
is of course, "42"
[ Reply to This | # ]
|
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| Authored by: Anonymous on Friday, July 31 2009 @ 02:02 PM EDT |
Wouldn't all the terms of the auction have to be spelled out by the examiner
before going forward?
It seems to me that the judge should have already decided to kick the board
out. Just one more attempt to stay in control I guess.
wjarvis[ Reply to This | # ]
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| Authored by: complex_number on Friday, July 31 2009 @ 02:02 PM EDT |
...
---
Ubuntu & 'apt-get' are not the answer to Life, The Universe & Everything which
is of course, "42"
[ Reply to This | # ]
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| Authored by: rsteinmetz70112 on Friday, July 31 2009 @ 02:05 PM EDT |
They say they "consent to an auction" and "agree to the
involvement of an examiner" but only in the auction.
They get a choice?
This looks like a last ditch effort to keep control and keep anyone from looking
inside SCO.
---
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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- Look but don't touch! - Authored by: Anonymous on Friday, July 31 2009 @ 02:40 PM EDT
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| Authored by: Kelledin on Friday, July 31 2009 @ 02:06 PM EDT |
Could it be that Judge Gross forced this move? i.e. something similar to a corp
executive being advised to tender his resignation (and keep his golden
parachute) rather than be fired?
This is just so different from what we normally see from SCO, though it sounds
to me like SCO is scrabbling to keep some measure of control even in the face of
an adversely-minded court. I note that they hint at the overseer/examiner being
brought on as an advisor rather than having any real power.
---
<Lionel Hutz> I'll be defending...The SCO Group!!!??? Even if I lose,
I'll be famous![ Reply to This | # ]
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| Authored by: DodgeRules on Friday, July 31 2009 @ 02:07 PM EDT |
As Ethyl Mertz said to her friends when Lucy pretended to do something nice,
"Look out for a trick!"[ Reply to This | # ]
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| Authored by: jmc on Friday, July 31 2009 @ 02:09 PM EDT |
It seems to me that the reference to:
Subject Assets (i.e. those
offered for sale in the current motion)
says it all - Darl still
gets to keep his pressssshhhhussss litigation if Judge Gross swallows that
one.
[ Reply to This | # ]
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| Authored by: Baud on Friday, July 31 2009 @ 02:09 PM EDT |
Docket #879:
There is no such pending motion.
[...]
The
appointment of a trustee would suffice.
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 31 2009 @ 02:21 PM EDT |
"We know we lost the hearing. We know that you probably want to appoint a
trustee. Please don't go all the way there, just go a little bit."
MSS2[ Reply to This | # ]
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- Translation - Authored by: Anonymous on Friday, July 31 2009 @ 02:33 PM EDT
- Better Translation - Authored by: Anonymous on Monday, August 03 2009 @ 03:45 PM EDT
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| Authored by: Anonymous on Friday, July 31 2009 @ 02:29 PM EDT |
| I would agree if you specify that Darl's golden parachute is changed to lead! [ Reply to This | # ]
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| Authored by: caecer on Friday, July 31 2009 @ 02:35 PM EDT |
In what possible world could this letter be held by Judge Gross as
"CONFIDENTIAL"?
All right, I know --- only in SCO's world.[ Reply to This | # ]
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| Authored by: webster on Friday, July 31 2009 @ 02:37 PM EDT |
..
Lawyers to a great extent are professional beggars. It is their job to seek the
goals of their clients while also avoiding pitfalls.
We don't know who originated the idea for this letter, but it is certainly a
goal of SCO to get more time, maintain control, and avoid scrutiny.
SCO has been asking for exclusivity beyond reasonable expectation and getting
it. This examiner and auction are not goals of SCO, but they are better than a
trustee and an auction. They fear the worst so they ask for only worse.
This letter also squeezes in an unscrutinized, unopposed request that they
wisely omitted to make in the last motion. It could have been granted when
filed with a continuing battle over a trustee. Anyway, IBM has reportedly
chimed in with a letter of opposition. One wonders if they saw the filing or got
the copy first.
This is probably one of those lame requests that the lawyer makes rather than
dissuade his intense client of its fruitlessness. It's like asking for
probation for a fifth-time drug dealer. The lawyer asks for his client's (and
his own) sake knowing for sure that the judge is going to give time.
.
[ Reply to This | # ]
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| Authored by: Baud on Friday, July 31 2009 @ 02:40 PM EDT |
Because, I suspect, they worry it didn't go so well at the
hearing.
MikeD reported that he indeed felt that.
But I have
another theory:
1. SCO's customers are running away as fast as they
can.
2. Norris unsuccessfully ran after the customers and finally jumped in
the train (with them). [ Reply to This | # ]
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| Authored by: HavingPun on Friday, July 31 2009 @ 02:43 PM EDT |
The first thing i noticed is that at the top of the letter was the word
Confidential. Interesting that either a) they would put that on there, or b)
the courts would not treat it as sealed. Is there any conceivable reason to
have Confidential on a public document in the first place?
---
Have Pun, will travel.
My spelling is not a strong suit.[ Reply to This | # ]
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| Authored by: webster on Friday, July 31 2009 @ 03:11 PM EDT |
..
IBM's response is thoughtful, authoritative, and powerful. The point out the
procedural [need a motion], and substantive [not enough examiner authority]
problems with an examiner. They also noted that SCO's offer hedged a bit on the
scope of the sale [same old assets problem].
Mirroring SCO's conciliatory tone, IBM concludes with a suggestion of an
examiner, but with trustee powers and no SCO involvement. They cite authority
for that, too. They must have fun surrounding SCO.
.[ Reply to This | # ]
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| Authored by: rsteinmetz70112 on Friday, July 31 2009 @ 03:14 PM EDT |
Novell actually included a Chapter 11 Trustee in their motion to convert.
From 751:
"Novell, Inc. (“Novell”), and its subsidiary, SUSE Linux GmbH (“SUSE” and
together with Novell the “Novell Parties”) move the Court to convert these cases
to chapter 7 (or to appoint a chapter 11 trustee).
---
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 Friday, July 31 2009 @ 03:18 PM EDT |
This is the way the world ends. Not with a bang but a whimper.
The Hollow Men
T.S. Eliot[ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 31 2009 @ 03:22 PM EDT |
"The Debtors ...wanted to inform the Court that the Debtors would ...
consent to an auction... and the appointment of an examiner ... should the Court
so direct."
Well, that conveys nothing whatsoever, because if "the
Court so directs", their consent is not required.
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 31 2009 @ 03:26 PM EDT |
| "But you've got to set your alarm for Volcano Day." - Captain Jack Harkness,
"The Doctor Dances," Doctor Who [ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 31 2009 @ 03:27 PM EDT |
IBM's concern about the proposal to limit the examiner's role could
be addresses by an order under the second half of 1106(b) ("any other duties of
the trustee that the court orders the debtor in possession not to perform")
expanding the role. As long as the Court's order made clear that the examiner
would have all the rights, powers, functions and duties of a trustee with
respect to the settlement of any litigation and that the debtor in
possession were prohibited from participating in any aspect of any such sale or
settlement except as specifically requested by the examiner. IBM believes,
however, that crafting such an order is an unnecessary distraction when a simple
order for the appointment of a trustee is pending before this Court and would
fully suffice.
Emphasis added. Does this mean that IBM wants to
negotiate some sort of settlement with the SCO trustee?[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, July 31 2009 @ 03:35 PM EDT |
The letter from SCO makes a clear distinction between the
Debtors and the BOD.
Not versed in the fine points, I always considered the Board
of Directors to stand for the company itself.. (see recent
conversation about the VP in Germany)
Is that usual?
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, July 31 2009 @ 03:36 PM EDT |
I get the sense that this is the board of directors signalling that they might
be ready to cooperate. I wouldn't be surprised if this was done over
management's objections.
A pledge of compliance with a court order is seems unneeded, but it's an
attitude we haven't yet seen. [ Reply to This | # ]
|
- Maybe I'm reading too much into this, but... - Authored by: relic on Friday, July 31 2009 @ 03:40 PM EDT
- Maybe I'm reading too much into this, but... - Authored by: benw on Friday, July 31 2009 @ 03:44 PM EDT
- You are reading too much into this. - Authored by: rsteinmetz70112 on Friday, July 31 2009 @ 03:45 PM EDT
- Conversely - Authored by: Anonymous on Friday, July 31 2009 @ 05:09 PM EDT
- Maybe I'm reading too much into this, but... - Authored by: Anonymous on Friday, July 31 2009 @ 03:45 PM EDT
- A pledge to comply with what? - Authored by: Anonymous on Friday, July 31 2009 @ 03:58 PM EDT
- Maybe I'm reading too much into this, but... - Authored by: Anonymous on Friday, July 31 2009 @ 04:04 PM EDT
| |
| Authored by: rsteinmetz70112 on Friday, July 31 2009 @ 03:52 PM EDT |
There could be a reason for this.
Novell filed an Objection to the Sale, which says the APA can only be assumed as
a whole. This could be related to that.
Is it possible the Judge asked a question about the agreements? I don't recall
these being submitted before. Was the APA ever submitted?
---
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 | # ]
|
- SCO Files Amendments 1 & 2 - Authored by: RFD on Friday, July 31 2009 @ 04:08 PM EDT
- Yes - Authored by: Anonymous on Friday, July 31 2009 @ 05:13 PM EDT
- Amendment 2 - Authored by: Anonymous on Friday, July 31 2009 @ 05:39 PM EDT
| |
| Authored by: Anonymous on Friday, July 31 2009 @ 04:03 PM EDT |
07/31/2009 - 881 - Notice of Service of Amendments 1 and 2 to
September 19, 1995 Asset Purchase Agreement Between Novell, Inc. and the Santa
Cruz Operation, Inc. (related document(s) 815 ) Filed by The SCO Group,
Inc.. (Attachments: # 1 Amendment 1# 2 Amendment 2# 3 Certificate of Service and
Service List) (Makowski, Kathleen) (Entered: 07/31/2009)
Emphasis
added.
It looks like they're just crossing some i's and dotting some
t's. The ammendments appear to have been filed as exhibits to 815, which was the
latest sales motion. Maybe they forgot to serve those amendments to some of the
interested parties back when they filed 815 and it's exhibits.[ Reply to This | # ]
|
| |
| Authored by: webster on Friday, July 31 2009 @ 04:03 PM EDT |
..
Barring a miracle, or extraordinary fairy machinations, Judge Gross is about to
make a series of final pronouncements. This will be sooner than the patient,
SCO would like. It may preempt their chance at the big score. The money has
run out; the Judge must do his daily duty. SCO will expire with maybe a few
organs donated for benefit of the aggrieved creditors.
.[ Reply to This | # ]
|
| |
| Authored by: jbb on Friday, July 31 2009 @ 04:37 PM EDT |
Just in case Judge Gross had any lingering doubts about the nature of the
people running SCO, all doubt has been eliminated. As Mark Twain
said:
Better to keep your mouth shut and be thought a fool than
to open it
and remove all doubt.
---
You just can't
win with DRM. [ Reply to This | # ]
|
- Just clarifying - Authored by: Anonymous on Friday, July 31 2009 @ 05:29 PM EDT
| |
| Authored by: Anonymous on Friday, July 31 2009 @ 04:38 PM EDT |
"As long as the Court's order made clear that the examiner would have all
the rights, powers, functions and duties of a trustee with respect to the sale
of any or all assets of the estates outside the ordinary course of
business"
SCO does not have much of a real business, and it wants to put
its main assets on sale. And, as IBM pointed out, an external
examiner will have to have the same rights as a trustee.
So, why should the court bother itself with an examiner? Just
nominate a trustee and be done with those endless motions.
(And tell Darl to move the big circus tent to the appeal court.)[ Reply to This | # ]
|
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| Authored by: Steve Martin on Friday, July 31 2009 @ 05:01 PM EDT |
[PJ:] Did that amendment ever get filed with the court so the
public can view it?
Yes, it did. It's the Exhibit attached to
docket # 870. Groklaw
has it
here.
---
"When I say something, I put my name next to it." --
Isaac Jaffe, "Sports Night" [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, July 31 2009 @ 05:03 PM EDT |
| It's another stall tactic. [ Reply to This | # ]
|
| |
| Authored by: RFD on Friday, July 31 2009 @ 05:16 PM EDT |
In his cross examination of Darl, Mr. Levin went over the minutes of the June
11, 2009 BOD meeting. According to them, Mr. McBride went over the status of
the negotiation of possible sales. He then told the board that that they had to
get a sale ready to present at the June 15 hearing in order to try to stave off
conversion. The board authorized him to pursue a sale. The board later
ratified the agreement Darl presented at the June 15 hearing--sorry I don't
remember the date. I remember thinking at the time that that exchange probably
did not help Darl's credibility with Judge Gross--that is not exactly the
picture Darl and Mr. Spector tried to paint at the June 15 hearing
---
Eschew obfuscation assiduously.[ Reply to This | # ]
|
| |
| Authored by: HockeyPuck on Friday, July 31 2009 @ 05:18 PM EDT |
I read in other posts about the time it takes Judge Gross will rule. Looking at
the news picks, that seems to explain a lot. The good Judge was also working on
another little bankruptcy case worth 1.13 billion dollars with Nortel and
Ericsson. After all, one SCO case equals many other cases. Now the
"letter". I'm surprised if he is able to rule in a week. But the delay
kings strike again, giving him even more to sort out.
At this point, he might as well wait until appeals are done. I would love to see
the look on SCO faces if the appeal is in Novell's favor. Then I might buy a
ticket to the next bankruptcy court date. That would be better than Shakespeare.
[ Reply to This | # ]
|
| |
| Authored by: karl on Friday, July 31 2009 @ 05:31 PM EDT |
| This is great...
As long as the Court's order made clear that the
examiner would have all
the rights, powers, functions and duties of a trustee
with respect to the sale
of any or all assets of the estates outside the
ordinary course of business and
with respect to the settlement of any
litigation and that the debtors in
possession were prohibited from
participating in any aspect of any such sale
or settlement except as
specifically requested by the examiner, IBM would not
object to the appointment
of an examiner.
In other words, we don't object to an examiner as long
as
the examiner is really a trustee. [ Reply to This | # ]
|
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| Authored by: Anonymous on Friday, July 31 2009 @ 05:42 PM EDT |
They consent to "an auction" of the "subject assets",
identified as those in the current sale (which are still not identified ;-)).
And by the final paragraph, they've dropped the auction altogether, and they are
looking forward to closing "the sale".
I read that as not an auction in the normal general sense, but merely the sale
they proposed with a rider that says someone else can submit bids, but that SCO
can ignore them.
Yet another hole in their credibility.[ Reply to This | # ]
|
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| Authored by: AMackenzie on Friday, July 31 2009 @ 05:46 PM EDT |
If you're a cricketer, this letter is a googly.
If you're a chess player, it's trying to provoke a positional weakness, to be
exploited later.
Everybody knows that the judge will be under some stress, desperately trying to
finish his work before the weekend, or possibly even trying to get it done by
midnight, Sunday.
This letter will increase that stress, even if the judge quite properly decides
to "ignore" it. From SCO's point of view, it might just push the
judge into making a mistake, something they can later appeal over. Why not?
They've got nothing to lose.[ Reply to This | # ]
|
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| Authored by: Anonymous on Friday, July 31 2009 @ 05:55 PM EDT |
I get the distinct feeling that IBM and Novell both anticipated this letter, and
had their responses ready.
The hat may finally be running out of rabbits.[ Reply to This | # ]
|
| |
| Authored by: tiger99 on Friday, July 31 2009 @ 06:30 PM EDT |
| After 6 years of moving at a sub-glacial pace, the end of SCO looks like being
very swift. Reminds me of the Berlin Wall..... But I see from the comments
here that the Groklaw community are also very quick today. Hopefully Judge
Gross' week will be a real week, and it will all be over on Monday. I think we
have just seen the dying convulsions of the corpse. I feel sorry for whoever
is appointed as trustee. It will be a truly miserable job sorting out this lot. [ Reply to This | # ]
|
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| Authored by: Anonymous on Friday, July 31 2009 @ 06:50 PM EDT |
...or does this look a lot like SCO squirming?
(Now there's an image worthy of a horror movie.)[ Reply to This | # ]
|
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| Authored by: Gringo on Friday, July 31 2009 @ 07:31 PM EDT |
SCO says... The appointment of an examiner
should alleviate the
concerns expressed at the hearing that
a
third party would need to be involved
in the process to make
sure it is fair to all
bidders.
They must be myopic if they couldn't see that
concerns
expressed at the hearing were much, much broader than SCO
suggests.
How stupid of them to say such a thing! We just
heard from Novel and IBM that
an examiner would not
alleviate their concerns, as any fool could have
predicted.
BTW: Do you think we will we receive a response from the
Trustee as well? [ Reply to This | # ]
|
- Red herring... - Authored by: PJ on Friday, July 31 2009 @ 07:34 PM EDT
- Red herring... - Authored by: Anonymous on Friday, July 31 2009 @ 08:28 PM EDT
- Red herring... - Authored by: PJ on Friday, July 31 2009 @ 08:33 PM EDT
- Red herring... - Authored by: Anonymous on Friday, July 31 2009 @ 08:35 PM EDT
- Red herring... - Authored by: Anonymous on Friday, July 31 2009 @ 09:21 PM EDT
- Red herring... - Authored by: Anonymous on Friday, July 31 2009 @ 11:54 PM EDT
- Red herring... - Authored by: PJ on Saturday, August 01 2009 @ 01:46 AM EDT
- ad hominem? - Authored by: Anonymous on Saturday, August 01 2009 @ 03:28 PM EDT
- Red herring... - Authored by: Gringo on Friday, July 31 2009 @ 09:24 PM EDT
- Red herring... - Authored by: PJ on Friday, July 31 2009 @ 09:28 PM EDT
- Red herring... - Authored by: Anonymous on Friday, July 31 2009 @ 11:59 PM EDT
- Red herring... - PJ's Comments Guidelines Link - Authored by: Anonymous on Friday, July 31 2009 @ 10:15 PM EDT
| |
| Authored by: Anonymous on Friday, July 31 2009 @ 08:22 PM EDT |
| Can they appeal Judge Gross' decision when he rules for SCO? [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, July 31 2009 @ 08:39 PM EDT |
Looks like SCO's latest roll of the dice is to keep flooding Gross
with more paper. Wouldn't be surprised if they keep filing new stuff
all next week, if the ruling doesn't come down Monday.
[ Reply to This | # ]
|
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| Authored by: Anonymous on Friday, July 31 2009 @ 08:56 PM EDT |
SCO is understandably desperate to avoid having a trustee appointed. One major
problem for SCO is that at the hearing Specter said that a Ch. 11 trustee would
be acceptable.
[ Reply to This | # ]
|
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| Authored by: Anonymous on Friday, July 31 2009 @ 08:58 PM EDT |
What do you bet that SCO will send the judge one or two more letters before he
is scheduled to issue his rulings?
[ Reply to This | # ]
|
| |
| Authored by: jws on Friday, July 31 2009 @ 11:49 PM EDT |
I wonder if the whole game SCO is playing right now is to simply generate $$
going forward for the Unix lawsuits, by selling off the real assets of the
corporation (what they say they have) but retaining the rights to sue to one
company.
The mobile company with whatever it produces would be given to IBM and Novell
and other debtors as a booby prize to make the claim they have honored their
claims. Obviously if you leave them nothing they would have a case to pursue
their settlement further, but if you give them an empty bag, they got something
and can't complain. Sort of along the lines of leaving $1 in your will to those
you really don't like.
Everything they do seems to be crafted to appear as they are doing what they are
being compelled to do, when in actuality they are very good at doing the
opposite with every move. The only way to win with such a crafty adversary is
to be sure you are calling the shots and not them.[ Reply to This | # ]
|
- What SCO is up to - Authored by: Anonymous on Saturday, August 01 2009 @ 12:00 AM EDT
| |
| Authored by: Anonymous on Saturday, August 01 2009 @ 12:04 AM EDT |
“A society becomes totalitarian when its structure becomes flagrantly
artificial,” Orwell wrote. “That is when its ruling class has lost its function
but succeeds in clinging to power by force or fraud.”
... doesn't this sound a lot like SCO as well?
As in the small, so also in the large - perhaps there is more to learn here than
just the facts of the task at hand ...
[ Reply to This | # ]
|
- Donations - Authored by: ak on Saturday, August 01 2009 @ 04:36 AM EDT
| |
| Authored by: Ian Al on Saturday, August 01 2009 @ 02:59 AM EDT |
I'm sorry, I'll read that again. 07/31/2009 - 881 - Notice of
Service of Amendments 1 and 2 to September 19, 1995 Asset Purchase Agreement
Between Novell, Inc. and the Santa Cruz Operation, Inc. (related document(s) 815
) Filed by The SCO Group, Inc..
So, SCOG are providing amendments
of a 1995 contract agreement between Santa Cruz Operation and Novell. Inc.
PJ suggests, the angelic interpretation would be that [SCOG]
noticed that it attached the APA but not the two amendments
Well,
it attached an APA, but not all the documents that go together
to make the APA to which these amendments form an integrated
part.
I checked and found that SCOG have not presented the APA, Operating
Agreement or any of the other documents that go to make the 1995 integrated
agreement. Neither does it claim that the amendments now form part of the new
signed APA. Indeed, there is already an Amendment 1 to the new APA with the
court (the basis of the APA filed with the court on the Sunday night before the
second conversion hearing).
These two documents cannot be read alone. They
can only be understood as part of the integrated agreement of 1995. Are they
referred to in any of the SCOG motions? Well, I must have missed that. Do they
relate to any of the APA documents that SCOG have presented to the court
(including the York APA)? No, SCOG make no such claim. So, I attach for the
court's consideration a poor, photostat copy of my 1987 water bill. I make no
claims that it relates to the SCOG bankruptcy, conversion or the proposed sales
or that it is in any way helpful to the court, but enjoy
anyway. ---
Regards
Ian Al
Linux: Viri can't hear you in free space. [ Reply to This | # ]
|
| |
| Authored by: Peter Baker on Saturday, August 01 2009 @ 07:38 AM EDT |
The main output of SCO is IMHO scamming the legal process by
spinning it out.
So, key question: can this be spun so it prolongs the process
again? If yes, seek for no further motives IMHO..
[ Reply to This | # ]
|
| |
| Authored by: Waterman on Saturday, August 01 2009 @ 08:19 AM EDT |
| "Whew. See why you want your attorney to be a true expert in the specialty field
you are involved in litigation in?"
And if you have friends who are lawyers
in the field of a lawsuit you're involved in, but they aren't the one who is
representing you, ask if the ones they reccomended ever beat them in court. No
means your friend is either very good or lucky. Yes means the ones they suggest
are as good as your lawyer friend. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, August 01 2009 @ 08:55 AM EDT |
| wikipedia
J
ack [ Reply to This | # ]
|
| |
| Authored by: ThrPilgrim on Saturday, August 01 2009 @ 09:15 AM EDT |
Thank you for your letter dated July 31, 2009
I'm really busy right now so I'll get around to dealing with it just as soon as
I've finished with these motions to convert which we discussed when we last met.
yours,
Judge Gross
---
Beware of him who would deny you access to information for in his heart he
considers himself your master.[ Reply to This | # ]
|
| |
| Authored by: AMackenzie on Saturday, August 01 2009 @ 10:58 AM EDT |
> It's true that Microsoft has documented the RTF format, but they still
control it and can change it any time.
True. But, in practice, they don't. If you send a file.rtf, you don't first
need to check what version of MS-Word the other guy is using. You can even load
it into Emacs 23.1 (shameless plug - it was released a couple of days ago :-)
and read it, possibly first filtering out the formatting dross.
> I do not want an agency to muck with my CV. Of course, they often want a CV
without contact details, and I always supply that to agencies. They can have two
pdfs, one with and one without contact details, if they want. No problem.
Well, fine. But the less work an agency has to do to deal with your CV, the
more likely you are to get something useful back from them.
> I definitely do not want agencies "correcting" my spelling.
Well, judging from your "definitely", you probably don't need it.
;-)
Just to be quite clear, I don't like using RTF - but it's less loathsome than
.doc.[ Reply to This | # ]
|
| |
| Authored by: SilverWave on Saturday, August 01 2009 @ 11:48 AM EDT |
Just read through what I missed on Friday...
Thanks for all the updates
PJ.
Looks as if this could be the End For SCO :D
About
time.
Here's Hoping we all get good news Monday!
---
RMS:
The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions
[ Reply to This | # ]
|
| |
| Authored by: IMANAL_TOO on Saturday, August 01 2009 @ 11:53 AM EDT |
How many LNS are there? I found one LNS dealing with bankrupt tech companies
through Google.
On December 11, 2003,
Lightyear Communications, Inc., (“LCI”) Lightyear
Telecommunications LLC
(“LTL”), and Lightyear Network Solutions, LLC (“LNS”)
(collectively
“Applicants”) filed an application with the Illinois Commerce
Commission
(“Commission”) seeking, to the extent necessary, permission to
consummate a series of
transactions through which LCI and LTL will emerge from
bankruptcy via the transfer of
substantially all assets to LNS. Applicants also
seek certificates of service authority
authorizing LNS to provide resold and
facilities-based local exchange telecommunications
services and resold and
facilities-based interexchange telecommunications services
throughout the State
of Illinois pursuant to Sections 13-403, 13-404, and 13-405 of the
Public
Utilities Act (“Act”), 220 ILCS 5/1-101 et
seq.
[...]
LNS is a newly-formed limited
liability company formed under the laws of Kentucky
for the purpose of carrying
out the transaction described herein. LNS is a wholly-owned
subsidiary of LY
Acquisition, LLC (“Acquisition”). Acquisition, in turn, is owned by a series
of
new investors, including LANJK, LLC, SullivanLY, LLC, and Rice-LY Ventures,
LLC.
LNS, as the successor of LCI and LTL, will acquire substantially all of LCI
and LTL’s
assets, as well as many of the experienced personnel employed by LCI
and LTL. After the
transactions are complete, LNS’ principal place of business
will be 1901 Eastpoint
Parkway, Louisville, Kentucky. A copy of LNS’ Articles of
Organization and evidence of its
authorization to transact business as a foreign
corporation in Illinois have been entered into
the record as Exhibits G and H,
respectively.
According to the application, the sale of assets has
been approved pursuant to an
auction conducted under the supervision of the U.S.
Bankruptcy Court for the Western
District of Kentucky on October 28, 2003.
Pursuant to the terms of the Asset Purchase Agreement executed by Acquisition,
LCI, and LTL, Acquisition agreed to an estimated
price of $33.5 million
through a combination of cash payment and debt assumption of the
debtors to
satisfy the creditors of LCI and LTL. At the time of closing, the assets of LCI
and
LTL will be transferred to Acquisition and then immediately transferred to
LNS. After the
transfer of assets to LNS, LNS will operate as a certificated
carrier in Illinois and will
continue to provide telecommunications service to
all current LCI customers.
In addition, it is expected that
Acquisition will be entering into a variety of financing
arrangements at the
time of consummating the aforementioned asset purchase. The
application states
that the details of this transaction have not yet been finalized, but
indicates
that this financing will involve Acquisition receiving a bank loan of
approximately
$14 million, secured by a guarantee of the assets of LNS,
including the newly acquired
assets from LCI and LTL. This transaction will
occur simultaneously with LNS’ becoming a
certificated telecommunications
carrier in Illinois.
How many LNS are there? The similarity with
this case seems more than coincidental.
---
______
IMANAL
. [ Reply to This | # ]
|
- LY==LightYear? - Authored by: Anonymous on Saturday, August 01 2009 @ 01:24 PM EDT
| |
| Authored by: SilverWave on Saturday, August 01 2009 @ 12:08 PM EDT |
Crippleware is any
product whose functions have been limited (or "crippled") with the express
purpose of requiring the user to pay for those functions (either paying a
one-time fee or continually paying a service)
"After you’ve
installed Windows 7, you can move up from Home Premium to Professional with
minimal extra effort, for an added sum, by using a program from Microsoft called
Windows Anytime Upgrade. This unlocks the added features of Professional,
which were actually already on your machine, but were hidden. You can do the
same thing to move up to Ultimate."
Hasta la
Vista: The Many Versions of Windows 7 Published on July 29, 2009 by Walter S.
Mossberg
Hah reading the Mossberg article it just hit me!
LOL
---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions
[ Reply to This | # ]
|
| |
| Authored by: The Mad Hatter r on Saturday, August 01 2009 @ 09:13 PM EDT |
| Dave Heiner, Vice President and Deputy General Counsel of Microsoft
has posted a message on Windows 7 and Browser Choice in
Europe.
I have a feeling that this is going to go over like a
lead balloon at the EU Competition Bureau.
It looks great the way he
talks about it, but what he's actually saying is:
1) We won't install
other browsers on Windows.
2) We will include IE
3) Rather
than doing what you asked (the Competition Bureau) what we are going to do is to
make the user who buys the computer start up Internet Exploder. When they start
up Internet Exploder, we will redirect them to a page that we designed, that
will mention other browsers, and we'll design it so that they will just use
Internet Exploder because it's too much work to install anything else. Oh, and
we are going to change the release version of Windows so that Firefox, Chrome,
and Opera will run like molasses in January.
Yeah, I'm
cynical.
---
Wayne
http://crankyoldnutcase.blogspot.com/
[ Reply to This | # ]
|
| |
| Authored by: GriffMG on Sunday, August 02 2009 @ 04:44 AM EDT |
Am I missing something?
I only see three updates - although one is called Update 4?
---
Keep B-) ing[ Reply to This | # ]
|
| |
| Authored by: GriffMG on Sunday, August 02 2009 @ 03:09 PM EDT |
Thanks people, particularly PJ, I get it now!
---
Keep B-) ing[ Reply to This | # ]
|
| |
| Authored by: Jeffrey on Monday, August 03 2009 @ 01:42 PM EDT |
How does Judge Gross deliver his decision? Is it posted, simply mailed to those
involved? How will we get to see it?
And finally, if one of the litigants doesn't like the decision (obviously) can
there/will there be more appeals/delays?
Sorry for the noob questions.[ Reply to This | # ]
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