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The U.S. Trustee's Office's Objections to Sealing the AutoZone Agreement
Thursday, December 03 2009 @ 02:22 PM EST

This is interesting. We get to learn now what it was the U.S. Trustee's Office's representative, Joseph McMahon, was fighting for when he objected to the complete sealing of the AutoZone-SCO settlement agreement. He objected to the parties being allowed to block all public access to any discussion about it at hearings, and he objected to them being able to redact all transcripts of any discussions about the settlement. The settlement agreement itself remains sealed.

Remember at the last SCO bankruptcy hearing, the one mostly about Wayne Gray, it ended with the AutoZone sealing conflict unresolved when time ran out, and Cahn's lawyer Bonnie Glantz Fatell said she'd continue to discuss the issue with Mr. McMahon and file the agreement under seal and the judge could sign it on certification of counsel? She has now filed the Certification of Counsel, and attached as Exhibit 2 there's a red-lined version of their compromise order, showing the changes he fought for.

Here is the filing:

12/01/2009 - 974 - Certification of Counsel Regarding Motion of Chapter 11 Trustee to File Under Seal Exhibit A to the Trustee's Motion, Pursuant to 11 U.S.C. Sec. 105(a) and Fed. R. Bankr. P. 9019, for Approval of Settlement Agreement With AutoZone (related document(s) 935 , 936 ) Filed by Edward N. Cahn, Chapter 11 Trustee for The SCO Group, Inc., et al.. (Fatell, Bonnie) (Entered: 12/01/2009)

You will find the red-lined version segment about hearings and transcripts beginning on page 10 of the PDF. We see that Cahn was trying to not only seal the agreement itself, but he was also trying to get all discussion about it in hearings closed to the public and any references in transcripts of hearings sealed as well.

Harumph. So our representative, the People's representative, in the bankruptcy court, Mr. McMahon, stood up for us, and now if any of the lawyers wish to talk about the agreement, we get to listen.

So if somebody slips and tells all, it's out there. Remember when SCO kept doing that at hearings, when it was in their advantage to do so? So... you never know. It ain't over 'til it's over, that great philosopher Yogi Berra told us. And for sure any references to it will be useful, even if they don't spill all the beans. So when you attend the hearings, they won't send you out to the hall.

I really like that we have a representative. For those that don't enjoy PDFs, here is the language, with a line through the parts McMahon was successful in altering:

3. Any hearings held in connection with the terms set forth in the Settlement Agreement shall be held in camera and the portions of any transcript of any hearing disclosing the terms of the Settlement Agreement shall be put and remain under seal.

4. The Settlement Agreement, and any Order approving same, and portions of any transcripts regarding any hearing disclosing the terms of the Settlement Agreement, shall remain filed under seal until further order of the Court, and with any such order to issue only upon notice to AutoZone and after giving AutoZone, SCO and the Office of the United States Trusteee and an opportunity to object to any unsealing of the record, and to appear and be heard at the hearing regarding same.

Isn't that fascinating? Methinks SCO would prefer that we not learn that AutoZone did very well indeed, since it hopes to avoid others in that same category someday using this settlement agreement as a ruler. And that tells us that Cahn is probably still dreaming of money from end users, although maybe just end users who, like AutoZone, were at one time at least customers of SCO or any of the so-called owners of UNIX going back to AT&T. I say so-called, because so did AutoZone, and frankly I defy anyone to draw a straight line of ownership of UNIX. Seriously, we tried here, remember? I am convinced no one can do it, particularly for the early stuff.

I have also been listening to the audio a volunteer purchased for me from the July bankruptcy hearing and another skilled audio guy fixed so I could hear it better. That was the one about whether or not SCO should be sent to Chapter 7. I am very frustrated that I can't share that with you, ever, but that is what the court told me. It's verboten. [But you can buy your own copy and listen to it that way.] I can't thank all our volunteers enough for all the wonderful initiative shown in attending hearings for us and thinking to get audio for me, so I can get more of a nuanced understanding. Even though I can't share it with you, it benefits me tremendously to hear the voices and mannerisms of all the players. In some case, the playahs. I really enjoyed hearing Arthur Spector's voice and listening to the performance. We'd miss a lot, frankly, if you guys didn't attend. So a big Thank You! I guess if you want all the nuances, you need to attend in person.

: D

As for the sealed agreement, someday such things come out in the wash anyway, in my experience. There'll be some future litigation where it gets referenced or attached as an exhibit or whatever. We even know now what Microsoft paid Caldera to end the DrDOS litigation. They were supposed to take that to the grave. And we even finally learned the terms of the BSDi settlement. We were able to access and make it public on Groklaw after many years of it being confidential. Sooner or later, we'll find out what happened with AutoZone, too, I have little doubt.

Meanwhile, we need to think up a plan for covering a three-week trial in Utah.


The U.S. Trustee's Office's Objections to Sealing the AutoZone Agreement | 173 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here, please...
Authored by: jbeadle on Thursday, December 03 2009 @ 02:37 PM EST
..So PJ can find them.



[ Reply to This | # ]

Off Topic (O/T) here, please...
Authored by: jbeadle on Thursday, December 03 2009 @ 02:39 PM EST
Try to make clicky links per the instructions on the "Post A Comment"



[ Reply to This | # ]

Newspicks threads here, please...
Authored by: jbeadle on Thursday, December 03 2009 @ 02:40 PM EST
The title line should reflect the newspick title.



[ Reply to This | # ]

Intrigued about what you can't tell us
Authored by: thorpie on Thursday, December 03 2009 @ 02:52 PM EST

Just intrigued about what you can't tell us and why. I re-read the reports from the day and there was no mention of the court closing or of any suppression order.

Just intrigued!?!

The memories of a man in his old age are the deeds of a man in his prime - Floyd, Pink

[ Reply to This | # ]

Interesting, to say the least...
Authored by: jbeadle on Thursday, December 03 2009 @ 02:55 PM EST
So... *now* who do you think is the one who wants this all kept sooper seekret?

I truly wonder who Cahn has been getting his information from, and at this point I'm guessing it has to be Boies, Schiller or maybe Brent Hatch. Darl isn't in the (official) picture any more, and I'm not sure some of the others that are still there shared his, uh, zeal for the litigation.


[ Reply to This | # ]

Why the Order?
Authored by: rsteinmetz70112 on Thursday, December 03 2009 @ 03:13 PM EST
Why is the Order approving the settlement under seal?

Surely the Order need do nothing except approve the Settlement filed under seal
and need not reveal anything about what's in the Settlement.

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 | # ]

How does this audio tape system work.
Authored by: Anonymous on Thursday, December 03 2009 @ 06:16 PM EST
"Even though I can't share it with you...."

You can not share it with us, although you did not get it from the court, but
from a third party, who has effectively shared it with you. On top of that you
have also shared it with the audio guy.
Could you not just continue what you have started and pass the tape, samizdat
style, from one member to another until all had heard it?
Why did the audio guy only make one copy, whilst he was about it he could have
created many copies to pass around.
Does the court only prohibit sharing the audio via the web?

[ Reply to This | # ]

Did they give a reason for not sharing the Audio?
Authored by: rsteinmetz70112 on Thursday, December 03 2009 @ 06:40 PM EST
Seems odd that the court will sell anyone that walks in a copy and object to
having it made public.

Surely like the transcripts and other documents it's a public record.

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 | # ]

How long can SCO keep evidence secret?
Authored by: Anonymous on Thursday, December 03 2009 @ 07:30 PM EST
Is there anything in the rules of procedure that sets a deadline about when a
plaintiff must disclose his evidence? There doesn't seem to be one. After all,
it's been almost seven years.

So, it would seem that it's OK for SCO never to disclose any evidence at all,
even after the jury is chosen.

Is there such a thing as due process in civil cases?

[ Reply to This | # ]

Where to find the audio
Authored by: Anonymous on Thursday, December 03 2009 @ 09:44 PM EST

The recording of the July 27 hearing has been available on the web for some time -- and legally. The site can't be mentioned here, but you can find it by searching for the phrase "a copy of the official audio recording can be found here".

[ Reply to This | # ]

Financial Transactions
Authored by: Anonymous on Friday, December 04 2009 @ 12:23 AM EST

I was trying to figure out if a financial transaction occured with the settlement. How likely is it that IBM and Novell didn't object to the settlement, and a significant financial transaction was involved?

If SCO paid AutoZone to close the case, then IBM and Novell would have objected as it would have given AutoZone a preferred place amongst the creditors. Why would AutoZone get paid if no one else does? Creditors tend to be greedy.

If AutoZone paid SCO to close the case, then we will likely see the financial transaction. As it is, I suspect AutoZone won on all points. Likely they got a statement saying they are not infringing, no one talks about what happened, and no further lawsuits can arise. At this point, AutoZone does not use SCO software, and never will.

Any thoughts? Does anyone think AutoZone might have paid SCO 1 dollar? or even 1 cent?

[ Reply to This | # ]

How to learn what Autozone got paid to settle
Authored by: Anonymous on Friday, December 04 2009 @ 07:02 PM EST

I think there will be an item in Autozone's SEC 8k filing stating the amount received in settlement.

I used this technique to learn how much Microsoft paid Lindows to settle and change their name to Linspire (agreement was similarly sealed). It will be up on yahoo financial for example once the report is published.

[ Reply to This | # ]

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