decoration decoration

When you want to know more...
For layout only
Site Map
About Groklaw
Legal Research
ApplevSamsung p.2
Cast: Lawyers
Comes v. MS
Gordon v MS
IV v. Google
Legal Docs
MS Litigations
News Picks
Novell v. MS
Novell-MS Deal
OOXML Appeals
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v Novell
Sean Daly
Software Patents
Switch to Linux
Unix Books


Groklaw Gear

Click here to send an email to the editor of this weblog.

You won't find me on Facebook


Donate Paypal

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.

What's New

No new stories

COMMENTS last 48 hrs
No new comments


hosted by ibiblio

On servers donated to ibiblio by AMD.

Wayne Gray's Motion to Lift Stay is Denied. And How.
Wednesday, November 25 2009 @ 03:20 PM EST

Wayne Gray's motion to lift the stay [PDF]in the SCO bankruptcy has been denied. If you are new, here's the report from the hearing about it, and for details on the dispute here's more. Gray is not entitled to the relief he seeks, Judge Kevin Gross has ruled:
Wayne R. Gray ("Mr. Gray" or "Movant") has moved to lift the automatic stay pursuant to 11 U.S.C. $ 362(d) (the "Motion"), in Movant's words, to "permit the Debtor" to participate in pending litigation' and an appeal. The basic problem with the Motion is that the Chapter 11 Trustee does not wish to participate and Mr. Gray lacks standing to compel his participation. Mr. Gray's effort is confounding to the Court because he invested considerable time and money in an obviously ill-founded, losing effort. The Court is willing to give Mr. Gray the benefit of the doubt that he filed and proceeded with the Motion in the good faith belief that he is entitled to the relief. The Court is nevertheless fully satisfied that Mr. Gray is completely wrong.
Not everyone is as nice as Judge Gross. But I admire his willingness to look for the best in everyone. But for sure that is the right question: why would he spend so much money and effort on something bound to fail? And even if he wanted to, why would his lawyers? Did they not tell him it was a losing effort? Here's the order:
11/25/2009 - 973 - Memorandum Order (related document(s) 942 ) Order Signed on 11/25/2009. (TAS) (Entered: 11/25/2009)

Footnote 4 says that his motion is "implausible":
"The law is that which is boldly asserted and plausibly maintained," Thompson Marsh. Here, the Movant takes a bold position, but the Motion is implausible.
SCO's bold position is implausible too, for those who understand the tech and the history of UNIX and Linux. But it's a more complex ball of wax, so it's not so easy to see its implausibility as Wayne Gray's motion, but to those of us who have carefully tracked it all, it's very much the same.

And what do you want to bet he appeals this ruling?

It's a scorching rebuke, one he'll have to take back to the appeals court looking at his appeal of the Florida dismissal of his complaint. The judge says he has no standing at all. He isn't a creditor or a shareholder:

His "concern" about SCO's best interest is patently disingenuous. The law is very and consistently clear: relief pursuant to Section 362(d) is available only to debtors and creditors.
What if he were either a creditor or a shareholder? Would the court lift the stay? No. Because the "prejudice to Debtors' estate would be substantial and irreversible". So much for "concern" for SCO, in that the judge views Gray as the only one who would benefit from a successful conclusion to his litigation. Anyway, Gray doesn't at all need SCO's participation for Gray to prove his case, the judge finds. The case moved along without SCO since SCO filed for bankruptcy. So there is no prejudice to Gray by denying his motion. Besides, the judge writes, he's read the ruling in the Florida action and Gray's "likelihood of success in the Florida Action is low."

That's the sweet way to put it, "low". Then in footnote 5, the judge points out something:

5 The futility of Mr. Gray's efforts is pronounced. If successful in the Appeal and the Federal Action, Mr. Gray will have established that SCO owns the Trademarks and Mr. Gray will have to deal with SCO, which has made it clear that they will not do business with Mr. Gray.
That, if I may be so cynical as to say it, is the simple version of Mr. Gray's position. Since his declared position makes no sense logically or legally, should one not assume that there is more to the story than has been revealed so far and that his actual interest is far from the declared ones? But this was a point raised by Bonnie Glantz Fatell in her presentation to the court at the hearing, and clearly it resonated with the judge. She also found Gray's motion confounding. Why, really, is he doing this?


Wayne Gray's Motion to Lift Stay is Denied. And How. | 57 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: bbaston on Wednesday, November 25 2009 @ 03:33 PM EST
if needed

imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold

[ Reply to This | # ]

Off Topic here
Authored by: bbaston on Wednesday, November 25 2009 @ 03:34 PM EST
Links appreciated

imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold

[ Reply to This | # ]

Newspick article comments go here
Authored by: bbaston on Wednesday, November 25 2009 @ 03:36 PM EST
Mention the article name and/or link to it, please.

imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold

[ Reply to This | # ]

Wayne Gray's Motion to Lift Stay is Denied. And How.
Authored by: GuyllFyre on Wednesday, November 25 2009 @ 03:40 PM EST
Hahaha, wow, this is pretty blunt and to the point:

"The Court is nevertheless fully satisfied that Mr. Gray is completely

The judge could have said that much earlier and not let Mr. Gray waste
everyone's time.

[ Reply to This | # ]

Wayne Gray's Motion to Lift Stay is Denied. And How.
Authored by: Steve Martin on Wednesday, November 25 2009 @ 04:01 PM EST

My favorite part:

The fact is that Mr. Gray is neither a stockholder nor a creditor of SCO and therefore he lacks any standing whatsoever to argue what is in the best interest of those constituencies - particularly because Mr. Gray is seeking to protect his own interests, not those of the creditors - stockholders. His "concern" about SCO's best interest is patiently[sic] disingenuous.
"Disingenuous." Ouch.

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

[ Reply to This | # ]

Why might be bad timing
Authored by: Anonymous on Wednesday, November 25 2009 @ 04:52 PM EST
Supposing this was one of Darl's schemes (any known connection between Gray and
Darl?) whereby Gray would file some ridiculous motion and Darl would agressively
pursue it (for delay or to further obsfucate things), but that Gray moved too
slow and Cahn fired Darl before Gray got his motion in.

It just seems too much like a Darl thing to do, and the timing of it all seems
curious (coming on the heels of Darl trying to acquire the trademarks by
'becoming' USL, and given Darl's history of trying to build arguments using his
own lies as 'evidence'...)

IOW, maybe instead of an outside backer, maybe there was an inside backer.

[ Reply to This | # ]

such a pity
Authored by: nola on Wednesday, November 25 2009 @ 05:02 PM EST
It is such a pity that SCO's shenanigans were not dealt with in such an
expedient fashion.

[ Reply to This | # ]

Gray's lawyers
Authored by: Anonymous on Wednesday, November 25 2009 @ 05:29 PM EST
Gray's lawyers didn't pay lots of money for these motions, the *got paid* lots
of money for them. The reason they went along with it should be obvious... If I
ask a painter and decorator to paint my living room bright pink with lime green
polka dots they aren't going to care that it will look disgusting, they just
care about getting paid. It's called "earning a living".

The lawyers would only refuse if they thought there was a significant chance of
them personally being sanctioned and I see no evidence that there was ever a
serious risk of that.

[ Reply to This | # ]

Why is Gray doing this?
Authored by: Anonymous on Wednesday, November 25 2009 @ 05:45 PM EST
Perhaps he's just a guy whose get-rich-on-the-work-of-others scheme fell
through, and he just can't let it go. We've seen that from Darl, but that
doesn't mean that there's a connection. It could just be two instances of the
same pathology.

Or perhaps he's what the communist revolutionaries called a "useful
idiot". Perhaps McBride and/or Yarro helped get him started, then were
going to throw him away at the end. (I started thinking about this because of
how the ruling pointed out that even if Gray won, SCO would own the trademark.)
It might have been useful to McBride and Yarro to have somebody else prove that
they owned the trademark.

Or perhaps Gray was a different puppet run by the same puppetmaster. (As I
pointed out before, the methodology does seem similar to SCO's.)

But given that SCO fought Gray's lawsuit rather than helping it, I don't think
that Gray was a SCO puppet.

I don't actually know anything; these are just my thoughts and guesses...


[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )