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Novell Files Motion for Judgment and Motion to Strike - Denied - Updated as text |
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Thursday, March 25 2010 @ 10:48 AM EDT
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Novell has filed two motions today, one for a judgment on SCO's slander of title claim -- the promised Rule 50(a) motion -- and one to strike testimony inconsistent with the unambiguous contract language. Novell points out that the only evidence SCO presented regarding malice is testimony by Maureen O'Gara of a conversation with Chris Stone, and no one corroborates her story, first of all, and second, O'Gara admitted she can't recall exactly what was said in the conversation with Chris Stone. She merely surmised things. And that's not clear and convincing evidence. No reasonable jury could find personal malice in the picture, so Novell says as a matter of law, judgment should be granted as a matter of law on SCO's claim for punitive damages.
Here are the filings:
03/24/2010 - 828 - MOTION to Strike Testimony That is Inconsistent with Unambiguous Contract Language filed by Defendant Novell, Inc.. (Brennan, Sterling) (Entered: 03/24/2010)
03/25/2010 - 829 - MOTION for Judgment as a Matter of Law NOVELL'S RULE 50(A) MOTION AT THE CLOSE OF PLAINTIFF'S CASE filed by Counter Claimant Novell, Inc., Defendant Novell, Inc.. (Brennan, Sterling) (Entered: 03/25/2010)
And believe it or not, the court has already denied them. I still haven't finished reading them.
03/25/2010 - 830 - MEMORANDUM DECISION denying 829 Motion for Judgment as a Matter of Law. Signed by Judge Ted Stewart on 03/25/2010. (asp) (Entered: 03/25/2010)
03/25/2010 - 831 - MEMORANDUM DECISION denying 828 Motion to Strike. Signed by Judge Ted Stewart on 03/25/2010. (asp) (Entered: 03/25/2010)
Here they are as text:
***************************
WORKMAN | NYDEGGER A P ROFESSIONAL CORPORATION
Sterling A. Brennan (Utah State Bar No. 10060; E-mail)
David R. Wright (Utah State Bar No. 5164: E-mail)
Kirk R. Harris (Utah State Bar No. 10221; E-mail)
Cara J. Baldwin (Utah State Bar No. 11863; E-mail)
[address, phone, fax]
MORRISON & FOERSTER LLP
Michael A. Jacobs (Admitted Pro Hac Vice; E-mail)
Eric M. Acker (Admitted Pro Hac Vice; E-mail)
Grant L. Kim (Admitted Pro Hac Vice; E-Mail)
Daniel P. Muino (Admitted Pro Hac Vice; E-Mail)
[address, phone, fax]
Attorneys for Defendant and Counterclaim-Plaintiff Novell, Inc.
_____________________
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
THE SCO GROUP, INC., a Delaware
corporation,
Plaintiff,
vs.
NOVELL, INC., a Delaware corporation,
Defendant.
__________________
AND RELATED COUNTERCLAIMS.
__________________
Case No. 2:04CV00139
NOVELL’S MOTION TO STRIKE
TESTIMONY THAT IS
INCONSISTENT WITH
UNAMBIGUOUS CONTRACT
LANGUAGE
Judge Ted Stewart
_______________________
I. INTRODUCTION AND SUMMARY OF ARGUMENT
Parol evidence regarding the meaning of a written contract is admissible only to resolve
ambiguities appearing therein. Winet v. Price, 4 Cal. App. 4th 1159, 1165, 6 Cal. Rptr. 2d 554
(1992).
The decision whether to admit parol evidence involves a two-step process.
First, the court provisionally receives (without actually admitting) all
credible evidence concerning the parties’ intentions to determine
“ambiguity,” i.e., whether the language is “reasonably susceptible” to the
interpretation urged by a party. If in light of the extrinsic evidence the
court decides the language is “reasonably susceptible” to the interpretation
urged, the extrinsic evidence is then admitted to aid in the second step —
interpreting the contract.
Id. “[T]he threshold determination of ‘ambiguity’ (i.e., whether the proffered evidence is
relevant to prove a meaning to which the language is reasonably susceptible) is a question of
law,” for the Court. Id. Absent ambiguity, and conflicting parol relevant to the resolution
thereof, the final interpretation of the contract is likewise a question of law for the Court. Id. at
1166.
The Tenth Circuit has ruled that the APA, as amended, is ambiguous in exactly one
respect, viz.: “the contractual language of Amendment No. 2 concerning the transfer of
copyrights is ambiguous.” SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201, 1210 (10th Cir.
2009). To date, the APA, as amended, has not been found ambiguous in any other respect.
However, testimony regarding the proper interpretation of other terms of the APA has also been
elicited and provisionally received.
The Court was required to provisionally receive all of the parol SCO had to offer before
making the legal determination whether the contractual language is susceptible to SCO’s
proposed interpretations. Pacific Gas & Elec. Co. v. G.W. Thomas Drayage & Rigging Co., 69
Cal. 2d 33, 39-40, 442 P.2d 641 (1968). SCO finally presented its last witness, Jack Messman,
today. Now that all of SCO’s parol has been provisionally received, Novell asks the Court to
1
rule that the relevant terms of the APA are not susceptible to the interpretations urged, and to
strike and instruct the jury not to consider the testimony thereby rendered superfluous.
II. SUMMARY OF TESTIMONY SOUGHT TO BE STRICKEN
SCO’s counsel informed the jury in his opening statement that SCO would elicit
testimony from Robert Frankenberg, Duff Thompson, Edward Chatlos, Burt Levine, and Ty
Mattingly “that it was the intent of Novell to sell the entire business” (Tr. at 14:24-25), and the
resulting transaction indeed “was the sale of the entire business” (Tr. at 15:9-10 [emphasis
added]). SCO delivered on this promise. (See, e.g., Tr. at 90:2-4 [Frankenberg], 241:24–242:3
[Thompson], 351:20-22 [Chatlos], 518:19 – 519:1 [Levine], 676:12 – 677:4 [Mattingly].) SCO
also elicited such testimony from several other witnesses, including Douglas Michels (Tr. at
497:5-10), Steve Sabbath (Tr. at 899:15-16), and John Maciaszek (Tr. at 1671:12-14). This is
the first category of testimony targeted by the instant motion.
SCO’s counsel also advised the jury that the SVRX license royalty stream was part of the
consideration paid by SCO to Novell (Tr. at 18:15-21), and SCO has elicited testimony to the
same effect (see, e.g., Tr. at 182:17-22). That is the second category of testimony targeted by
this motion.
Finally, SCO has elicited testimony that the APA did not license any rights to SCO. (See,
e.g., Tr. at 242:5-15.) This is the last category of targeted testimony.
III. ARGUMENT
Section 1.1(a) of the APA (Ex. A1) begins: “On the terms … set forth in this Agreement,
Seller will sell … to Buyer and Buyer will purchase … all of Seller’s right, title and interest in
and to the assets … relating to the Business (collectively the ‘Assets’) identified on Schedule
1.1(a) hereto.” That section then concludes: “Notwithstanding the foregoing, the Assets to be so
purchased shall not include those assets (the ‘Excluded Assets’) set forth on Schedule 1.1(b).”
That is, the APA promises to sell only the assets that are (1) enumerated in Schedule 1.1(a) and
2
(2) not excluded by Schedule 1.1(b). That is something far different than a promise to sell the
“entire business,” and it is not susceptible to the interpretation urged by SCO’s witnesses.
Therefore testimony that Novell sold the entire business should be stricken, the jury should be
instructed to disregard it, and the jury should be instructed that Novell promised to sell only the
Assets identified in Schedule 1.1(a) (rather than the entire business).
SVRX royalties, in turn, are among the “Excluded Assets” identified in Section VIII of
Schedule 1.1(b) to the APA, which as noted above are specifically and expressly excluded from
the Assets being transferred by Section 1.1(a) of the APA. Because the SVRX royalties were
never transferred to SCO, they cannot have been paid over by SCO to Novell. Even more telling,
Section 1.2(a) expressly provides: “as full payment for the transfer of the Assets by Seller to
Buyer, at the Closing Buyer shall assume the Assumed Liabilities and issue to Seller 6,127,500
shares [emphasis added].” The APA expressly defines SCO’s “full payment,” and that payment
does not include SVRX royalties. SCO’s testimonial evidence describing SVRX royalties as
consideration paid to Novell cannot be reconciled with the express language of the APA and
should be stricken, and the jury should be instructed (1) to disregard such testimony and (2) that
SVRX royalties are not part of what SCO paid Novell.
Finally, whether the APA licenses any rights to SCO is, again, a question of contract
interpretation for the Court in the absence of ambiguity and conflicting parol. Section 1.2(b) of
the APA provides: “Buyer agrees to make payment to Seller of additional royalties retained by
Seller … on account of Buyer’s future sale of UnixWare products,” as “identified in detail on
Schedule 1.2(b) hereto.” Schedule 1.2(b), in turn, provides that “Royalties shall be paid on sales
of the following products by Buyer …: (i) UnixWare (ii) Eiger (iii) MXU (iv) White Box [and]
(v) any derivative, upgrades, updates or new releases of (i) through (iv) above.” These
provisions unambiguously authorize — i.e., license — SCO to make and distribute copies, and
prepare derivative works. Testimony that the APA does not grant any licenses should be stricken,
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and the jury should be instructed (1) to disregard such testimony and (2) that the APA does grant
licenses to make and distribute copies, and prepare derivative works.
IV. CONCLUSION
“The parol evidence rule, as is now universally recognized, is not a rule of evidence but
one of substantive law. It does not exclude evidence for any of the reasons ordinarily requiring
exclusion, based on the probative value of such evidence or the policy of its admission. . . .
Extrinsic evidence is excluded because it cannot serve to prove what the agreement was, this
being determined as a matter of law to be the writing itself.” Estate of Gaines, 15 Cal. 2d 255,
264-265, 100 P.2d 1055 (1940); see also Casa Herrera, Inc. v. Beydoun, 32 Cal. 4th 336, 343, 83
P.3d 497 (2004) (citing and quoting Gaines). Novell respectfully requests that the Court strike
and instruct the jury to disregard parol testimony urging interpretations to which the language of
the APA is not susceptible because such testimony is incompetent and thus irrelevant to prove
the interpretations in support of which it is offered.
DATED: March 24, 2010 Respectfully submitted,
By: /s/ Sterling A. Brennan
WORKMAN NYDEGGER
MORRISON & FOERSTER LLP
Attorneys for Defendant and
Counterclaim-Plaintiff Novell, Inc.
***************************************************
WORKMAN | NYDEGGER A P ROFESSIONAL CORPORATION
Sterling A. Brennan (Utah State Bar No. 10060; E-mail)
David R. Wright (Utah State Bar No. 5164: E-mail)
Kirk R. Harris (Utah State Bar No. 10221; E-mail)
Cara J. Baldwin (Utah State Bar No. 11863; E-mail)
[address, phone, fax]
MORRISON & FOERSTER LLP
Michael A. Jacobs (Admitted Pro Hac Vice; E-mail)
Eric M. Acker (Admitted Pro Hac Vice; E-mail)
Grant L. Kim (Admitted Pro Hac Vice; E-Mail)
Daniel P. Muino (Admitted Pro Hac Vice; E-Mail)
[address, phone, fax]
Attorneys for Defendant and Counterclaim-Plaintiff Novell, Inc.
_____________________
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
THE SCO GROUP, INC., a Delaware
corporation,
Plaintiff,
vs.
NOVELL, INC., a Delaware corporation,
Defendant.
__________________
AND RELATED COUNTERCLAIMS.
__________________
Case No. 2:04CV00139
NOVELL’S RULE 50(a) MOTION AT
THE CLOSE OF PLAINTIFF’S CASE
Judge Ted Stewart
_______________________
I. INTRODUCTION
To support its claim for punitive damages, SCO must prove, by clear and convincing
evidence, that Novell’s allegedly slanderous statements were motivated by personal malice – i.e.,
ill will, hatred, or an intent to injure. SCO has failed to adduce sufficient evidence to carry its
burden.
The individuals responsible for issuing the accused statements (Messrs. Messman, Stone,
and LaSala) have all testified that they were acting to protect Novell’s interests, not to injure
SCO. Each of Novell’s statements had the legitimate purpose of setting forth Novell’s position
on the public dispute between the parties concerning ownership of the UNIX copyrights. SCO
has produced no evidence to contradict the testimony of Messrs. Messman, Stone, and LaSala
regarding the intent behind Novell’s December 22, 2003 press release, the copyright registrations
of September and October 2003, the January 13, 2004 press release, or Mr. Stone’s March 2004
speech.
SCO’s only evidence directed to establishing personal malice is the testimony of
journalist Maureen O’Gara. Ms. O’Gara accused Mr. Stone of deliberately issuing the May 28,
2003 press release on the same day as SCO’s earnings announcement in order to impact SCO’s
stock price. But Ms. O’Gara’s testimony suffers from at least two fatal flaws: First, it is
completely uncorroborated either by another witness or a written record; and second, Ms.
O’Gara admitted that she could recall no specific words of Mr. Stone’s suggesting an intent to
harm SCO – she merely surmised his intent from his “laughter” and “chortling.” This is far from
the clear and convincing evidence that is required to establish personal malice to support punitive
damages.
In the absence of any credible evidence to contradict the testimony of Novell’s witnesses,
a reasonable jury could not find, by clear and convincing evidence, that Novell’s statements were
motivated by personal malice. Accordingly, judgment should be granted as a matter of law on
SCO’s claim for punitive damages.
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II. STANDARD
A party is entitled to judgment as a matter of law if the Court concludes, after drawing all
reasonable inferences in favor of the nonmoving party, that all of the evidence in the record
reveals no legally sufficient evidentiary basis for a claim under controlling law. Wagner v. Live
Nation Motor Sports, Inc., 586 F.3d 1237, 1244 (10th Cir. 2009). Because the “clear and
convincing” requirement applies to SCO’s punitive damages claim, the question is whether the
evidence in the record could support a reasonable jury finding that SCO has shown personal
malice by clear and convincing evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-256 (1986) (clear and convincing evidence requirement for actual malice element applies at
directed verdict stage). Rule 50(a) provides:
If a party has been fully heard on an issue during a jury trial and
the court finds that a reasonable jury would not have a legally
sufficient basis to find for the party on that issue, the court may . . .
grant a motion for judgment as a matter of law against the party. . .
Fed. R. Civ. P. 50(a)(1). A motion for judgment as a matter of law may be made at any time
before the case is submitted to the jury. See Fed. R. Civ. P. 50(a)(2). Motions under Rule 50
must “specify the judgment sought and the law and facts that entitle the movant to the
judgment.” Fed. R. Civ. P. 50(a)(2).
III. THE EVIDENCE DOES NOT SUPPORT AN AWARD OF PUNITIVE DAMAGES
In order to award punitive damages, the jury must first find two forms of malice:
(1) knowledge of falsity or reckless disregard of falsity (constitutional malice),1 and (2) hatred,
ill will, or intent to injure (personal malice). (Court’s Instruction No. 38; MUJI 10.12.) The
evidence in the record cannot support a reasonable jury finding that SCO has shown personal
malice by clear and convincing evidence. The Court should therefore grant Novell’s motion for
judgment as a matter of law, and dismiss SCO’s punitive damages claim. Tabor v. Metal Ware
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Corp., 2009 U.S. Dist. LEXIS 9689, at *10 (D. Utah Feb. 6, 2009) (dismissing punitive damages
claim on summary judgment where the plaintiff failed to establish malice or reckless indifference
by clear and convincing evidence).
Because the “clear and convincing” requirement applies, SCO’s punitive damages claim
should be dismissed even if there is some evidence by which a jury could infer personal malice.
For example, in Beck’s Office Furniture & Supplies v. Haworth, 1996 U.S. App. LEXIS 20608
(10th Cir. 1996) (unpublished),2 the Tenth Circuit affirmed the district court’s grant of judgment
as a matter of law on the issue of punitive damages on a tortious interference claim. The Court
found that even if the plaintiff could argue that the jury might have “reasonably inferred” that the
defendant acted maliciously, “these inferences could not lead a reasonable jury to find the
evidence was clear and convincing, particularly in light of the plausible legitimate reasons” given
by the defendant. 1996 U.S. App. LEXIS 20608, at *33. As the Tenth Circuit has elsewhere
noted, the question is “not whether there is literally no evidence supporting the party against
whom the motion is directed but whether there is evidence upon which the jury could properly
find a verdict for that party.” Mackey v. Burke, 751 F.2d 322, 325 (10th Cir. 1984) (district court
erred in denying motion for directed verdict and submitting punitive damages to the jury where
the evidence did not rise to the level of “clear and convincing” evidence needed under Kansas
law to support the finding of fraud and the assessment of punitive damages.) Here, the jury
could not properly find that SCO has established personal malice with convincing clarity.
A. SCO Has Not Shown Personal Malice By Clear and Convincing Evidence
SCO must prove, by clear and convincing evidence, that Novell acted with personal
malice when publishing the allegedly slanderous statements. MUJI §10.12. Malice is defined as
conduct where “defendant acted with hatred or ill will towards the plaintiff, or with an intent to
injure the plaintiff, or acted willfully or maliciously towards the plaintiff.” MUJI §10.12; Utah
Ann. Code § 78B-8-201 (punitive damages may only be awarded if “it is established by clear and
3
convincing evidence that the acts or omissions of the tortfeasor are the result of willful and
malicious or intentionally fraudulent conduct, or conduct that manifests a knowing and reckless
indifference toward, and a disregard of, the rights of others.”). SCO failed to present sufficient
evidence to rebut the testimony of Novell’s witnesses that they issued the accused statements to
protect Novell’s interests, not to harm SCO.
1. The Evidence Shows Novell Acted to Protect Its Interests, Not to
Injure SCO
Novell published the press releases and registered the copyrights to protect its business
interests. Novell’s story is corroborated by numerous knowledgeable witnesses. Joseph LaSala,
Novell’s general counsel from July 2001 through mid January 2008, testified that Novell
published the press releases and registered the copyrights to protect Novell’s interests and
nothing more. (Trial Tr. 1924:24-1925:6; 1935:17-1936:17, Mar. 22, 2010.)
Q. What was the reason for putting out the letter and responding to
Mr. McBride? Was it done in order to somehow injure SCO or Mr.
McBride, or was it done to protect Novell’s interests?
A. It was totally motivated to protect Novell’s interests. I have
explained to you a little bit about our initiative into this business,
this Linux business. As you can imagine, for a company that was
preparing to devote a lot of resources and spend a lot of money
getting into the business, this campaign of SCO’s and Mr.
McBride’s really had the potential to disrupt all of that.
With due respect, I had no opinion and I had really no care, per se,
with respect to Mr. McBride or Mr. McBride’s business. I was
concerned about Novell’s business and Novell’s business interests.
(Id. at 1894:1-15.)
Chris Stone, Novell’s senior vice president in corporate development from 1997 to 1999
and who returned to Novell in 2002 as vice chairman, testified that SCO’s claim to ownership
“was hurting Novell’s business” and they were receiving “enormous pressure” from
shareholders, clients, and customers to respond publicly. (Trial Tr. 1625:3-17; 1636:2-5; 1636:6-
19, Mar. 19, 2010.)
Jack Messman, Novell’s CEO at the time the press releases were issued, testified that
Novell published the claims of ownership and copyright registrations to protect Novell’s
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business, not to harm SCO. (Trial Tr. 2286:2-5, Mar. 24, 2010.) Both Mr. Messman and Greg
Jones, Novell’s in-house counsel, also testified that the statements were made publicly because
Novell wanted to be “transparent” and allow the public to “make their own judgments.” (Id.
at 2231:14-23; 2287:19-2288:7.)
Novell’s intent all along was to protect its business interests. SCO has offered no
evidence of any kind to rebut the testimony of Novell’s witnesses and support a finding that
Novell acted maliciously with respect to its December 22, 2003 press release, the copyright
registrations of September and October 2003, the January 13, 2004 press release, or Mr. Stone’s
speech of March 2004.
2. There is No Credible Evidence Showing That Novell's May 28, 2003
Press Release Was Malicious
With respect to the press release of May 28, 2003, SCO relies solely on the testimony of
journalist Maureen O’Gara to draw an inference that Novell acted maliciously. Ms. O’Gara
testified regarding a phone conversation she had with Mr. Stone in which Mr. Stone purportedly
said that Novell’s May 28 press release was intentionally timed to coincide with SCO’s earnings
announcement on that day. (Trial Tr. at 1652:14-1654:5, Mar. 19, 2010.) Ms. O’Gara inferred
that Novell’s intent was to “confound SCO's stock positions.” (Id. at 1653:8-21.) Yet,
Ms. O’Gara admitted that she could not recall any words spoken by Mr. Stone confirming his
intent to harm SCO – she simply inferred his intent from his “laughter” and “chortling”:
Q. Q. Did Mr. Stone say anything about harming SCO?
A. Logically, there wouldn't be any other reason.
Q. So you -- you understood that to be the intent?
A. That’s what I understood.
...
Q. And what words or substance of the conversation do you
precisely recall him using in order for him to convey that, as
opposed to you to infer it?
A. Maybe it was the laughter that I remember most about it.
...
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Q. What do you recall of the exact words Mr. Stone used with you
in reporting to you the planned announcement?
A. I can’t.
(Id. at 1653:25-1654:5, 1656:7-11, 1659:5-8.) For his part, Mr. Stone denies telling Ms. O’Gara
that the May 28 press release was timed to coincide with SCO’s earning announcement. (Id.
at 1637:12-15.) Indeed, Mr. Stone was not even aware at that time that SCO was releasing its
earnings announcement on May 28, 2003. (Id. at 1604:15-1605:3.) Mr. Stone, Mr. LaSala and
Mr. Messman all testified that the timing of the May 28 press release was coincidental. (Trial Tr.
1606:22-25, Mar. 19, 2010; Trial Tr. 1961:15-19, Mar. 22, 2010; Trial Tr. 2253:20-23, Mar. 24,
2010.)
Furthermore, Ms. O’Gara’s testimony regarding Mr. Stone’s allegedly malicious intent
was completely uncorroborated, either by other witnesses or in a written record. She admitted
that she had no notes of her conversation with Mr. Stone. (Trial Tr. 1660:1-3.)
A showing of personal malice requires clear and convincing evidence. Ms. O’Gara’s
testimony does not rise to the level of clear and convincing evidence that Novell acted
maliciously in issuing the press release on May 28, 2003. See Nikols v. Goodman, 206 P.3d 295,
298 (Utah App. 2009) (“The quality and quantity of Plaintiff’s evidence does not meet the
‘minimum standards of being clear and convincing’” where, inter alia, Plaintiff’s testimony was
uncorroborated).
3. There is No Credible Evidence Showing That Novell’s December 22,
2003 Press Release Was Malicious
SCO presented no direct evidence that Novell acted maliciously in publishing the
December 22, 2003 press release. SCO would like the jury to infer, based on the timing alone,
that this press release was intended to harm SCO. (Trial Tr. at 33:16-19, Mar. 9, 2010.)
However, there is no documentary or testimonial evidence of any kind that Novell deliberately
timed the press release to coincide with SCO’s earnings reports. To the contrary, Mr. LaSala and
Mr. Stone both testified that they were not aware that SCO was announcing its earnings on that
day. (Trial Tr. 1622:10-13, Mar. 19, 2010; Trial Tr. 1980:12-14, Mar. 22, 2010.) Mr. Messman
also testified that the timing was a coincidence. (Trial Tr. 2277:15-17, Mar. 24, 2010.) Novell
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chose to issue the December 22 press release because SCO had been making public statements
erroneously asserting that Novell agreed with SCO’s claims to UNIX copyright ownership,
despite private letters from Novell to the contrary. (Trial Tr. 1919:22-1920:10, 1935:12-1936:17.) Novell felt it was important for the public to hear Novell’s side of the story.
Additionally, the December 22 press release included a link to copies of correspondence
between SCO and Novell in which each side explained their positions on the copyright
ownership dispute. (Trial Tr. 1935:12-1936:17.) As Mr. LaSala testified, “we finally got to the
point where we, again, felt it was important to allow the public to see both sides of the argument
so that they could make some judgments, themselves, about this very important question.” (Id.)
Novell’s publication of SCO’s letters, along with its own, undermines any inference of malicious
intent in Novell’s press release.
4. There is No Evidence Showing That Mr. Stone’s March 2004 Trade
Show Remarks Were Malicious
There is no evidence that Mr. Stone’s remarks at the open source business conference
were intended to harm SCO. To the contrary, Mr. Stone testified that his speech was intended to
champion the open source technology movement because it provided a “much more open and
freer model of developing software applications.” (Trial Tr. 1624:21-1625:2, Mar. 19, 2010.)
He further testified that SCO’s assertion that there was UNIX in Linux was affecting Novell’s
ability to promote Linux in the open source movement as business for Novell, and that he was
concerned it was “harming Novell’s future business.” (Id. at 1625:3-1625:17.) Like Novell’s
other ownership claims, Mr. Stone’s remarks were intended to protect Novell’s business, not
injure SCO. SCO has presented no evidence to rebut this testimony.
IV. CONCLUSION
SCO has no evidence to support its theory that Novell acted maliciously in connection
with its press releases of December 22, 2003 and January 13, 2004, its copyright registration
applications filed in September and October 2003, or Mr. Stone’s public statement of
March 2004. The testimony presented makes clear that Novell made those statements to protect
7
its own business interests, not to harm SCO. As to the May 28, 2003 press release, Ms. O’Gara’s
testimony does not establish malice by clear and convincing evidence.
For the reasons set forth above, Novell respectfully requests that the Court find as a
matter of law that no reasonable jury could award SCO punitive damages.
DATED: March 24, 2010 Respectfully submitted,
By: /s/ Sterling Brennan
WORKMAN NYDEGGER
MORRISON & FOERSTER LLP
Attorneys for Defendant and
Counterclaim-Plaintiff Novell, Inc.
__________
1
This motion is limited to the issue of whether the evidence in the record supports SCO’s
claim for punitive damages. Because constitutional malice goes to the merits of SCO’s slander
of title claim, Novell will not brief that issue here, but will include it instead in its Rule 50(a)
Motion at the close of all evidence.
2
Unpublished decisions by the Tenth Circuit “may be cited for their persuasive value.”
10th Cir. Rule 32.1(A).
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Authored by: Erwan on Thursday, March 25 2010 @ 10:53 AM EDT |
If any.
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Erwan[ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 25 2010 @ 10:57 AM EDT |
Both of Novell motions,
denied.
grnbrg. [ Reply to This | # ]
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Authored by: Tufty on Thursday, March 25 2010 @ 11:00 AM EDT |
off tropic as well
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Linux powered squirrel.[ Reply to This | # ]
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Authored by: the_flatlander on Thursday, March 25 2010 @ 11:01 AM EDT |
Reportedly, in #830, the Judge denies the motion, saying tht the Plaintiff has
produced sufficient evidence for punitive damages that the issue must go to the
jury.
[ Reply to This | # ]
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Authored by: Tufty on Thursday, March 25 2010 @ 11:01 AM EDT |
hello newshounds
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Linux powered squirrel.[ Reply to This | # ]
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Authored by: ilde on Thursday, March 25 2010 @ 11:01 AM EDT |
He's doing such an incredible coverage for us. [ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 25 2010 @ 12:07 PM EDT |
I'm not surprised they are denied.
The judge has been disinclined to remove testimony once
given, so no surprise on that one.
And I though Novell's argument about no ill-will being proved
appears weak. A jury _could_ decide to believe O'Gara and
not LaSala et. al. I don't think they will, but they could.[ Reply to This | # ]
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- How? - Authored by: Anonymous on Thursday, March 25 2010 @ 12:10 PM EDT
- How? - Authored by: Anonymous on Thursday, March 25 2010 @ 01:18 PM EDT
- Troubled about one thing... - Authored by: Anonymous on Thursday, March 25 2010 @ 12:28 PM EDT
- Denied ... sounds right to me - Authored by: Anonymous on Thursday, March 25 2010 @ 12:38 PM EDT
- Novell expected it. - Authored by: rsteinmetz70112 on Thursday, March 25 2010 @ 12:52 PM EDT
- But there was nothing to believe! - Authored by: Anonymous on Thursday, March 25 2010 @ 01:13 PM EDT
- Not surprising, but still wrong, and grounds for an appeal (if necessary) - Authored by: nb on Thursday, March 25 2010 @ 01:21 PM EDT
- Sorry, but the royalty part should have been a slam dunk - Authored by: Anonymous on Thursday, March 25 2010 @ 07:47 PM EDT
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Authored by: Anonymous on Thursday, March 25 2010 @ 01:16 PM EDT |
Footnote 1 of Novell's 829 says "This motion is limited to the issue of
whether the evidence in the record supports SCO’s claim for punitive damages.
Because constitutional malice goes to the merits of SCO’s slander of title
claim, Novell will not brief that issue here, but will include it instead in its
Rule 50(a) Motion at the close of all evidence."
So it seems Novell will be filling another similar motion later.[ Reply to This | # ]
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- Good catch - Authored by: Anonymous on Thursday, March 25 2010 @ 01:37 PM EDT
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Authored by: Anonymous on Thursday, March 25 2010 @ 01:42 PM EDT |
Because for all their dancing and parsing, they did not tabkle on "the
plain language" of Amendment 2.
The jury will give SCO the copyrights. Then, since Novell didn't even bother
refuting the accusation that UNIX is in Linux, Hell will be unleashed.
Is anyone else feeling sick?[ Reply to This | # ]
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- s/tabkle on/tackle - Authored by: Anonymous on Thursday, March 25 2010 @ 01:43 PM EDT
- Then why is SCO's stock down so much? - Authored by: Anonymous on Thursday, March 25 2010 @ 02:40 PM EDT
- Request to SCO: better trolls - Authored by: jbb on Thursday, March 25 2010 @ 03:17 PM EDT
- SCO out of Luck and out of Time. - Authored by: SilverWave on Thursday, March 25 2010 @ 03:43 PM EDT
- Troll alert! - Authored by: jheisey on Thursday, March 25 2010 @ 03:56 PM EDT
- Troll alert! - Authored by: Anonymous on Thursday, March 25 2010 @ 04:54 PM EDT
- It SCOX to be you! - Authored by: Anonymous on Thursday, March 25 2010 @ 03:58 PM EDT
- They're right about the Striking but they'll still lose the copyrights - Authored by: plewis on Thursday, March 25 2010 @ 04:11 PM EDT
- They're right about the Striking but they'll still lose the copyrights - Authored by: Anonymous on Thursday, March 25 2010 @ 06:46 PM EDT
- They're right about the Striking but they'll still lose the copyrights - Authored by: Steve Martin on Thursday, March 25 2010 @ 07:25 PM EDT
- Troll choir refrain: everybody sing along - Authored by: Anonymous on Thursday, March 25 2010 @ 07:58 PM EDT
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Authored by: Anonymous on Thursday, March 25 2010 @ 01:52 PM EDT |
Is that how you read the charts? 52-week high of 89 cents, current price in the
40s?
Wow, SCO gets its day in court, and I wonder if they'll accuse Novell of
deliberately planning to get a trial in order to harm SCO's stock.
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 25 2010 @ 02:00 PM EDT |
I've been in the gallery for a few cases, both civil and criminal, and it seems
that a Motion for a Directed Verdict (or an equivalent) is routine when the
plaintiff/prosecution finishes their case, and again when the defense rests,
prior to summations. I've not seen them granted, but the motion itself is no
indication as the strength of the case, nor is its denial a blow to the moving
party. It is often fodder for appeal or a show of confidence by the lawyers.
What it usually isn't is a reflection on reality. This thing is going to the
jury: All of it. Always has been. [ Reply to This | # ]
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Authored by: SilverWave on Thursday, March 25 2010 @ 03:37 PM EDT |
Judged by his own actions.
Didn't expect anything else from him.
---
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 | # ]
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Authored by: SilverWave on Thursday, March 25 2010 @ 03:44 PM EDT |
?
---
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 | # ]
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Authored by: Anonymous on Thursday, March 25 2010 @ 04:11 PM EDT |
Whoo Hoo!
Big pockets company lawsuits here I come! Can't you smell the money!? Oh, what
should I sue for first? Who first? Maybe Sony? Disney? GM! Hey MOG? I need some
of your hearsay to support my case!
Hooo hah!
First, I'll need to move to Utah, though I guess.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 25 2010 @ 04:19 PM EDT |
> [...] Defendant issued two of the allegedly slanderous statements
on the same date that Plaintiff issued its earnings reports. While
there is evidence that this was a mere coincidence, the jury could
conclude otherwise [...] <
once is happenstance, twice is coincidence, three times is enemy action
So novell would have gotten away with a single occurrence; they would
have been straight in the slammer for three such happenings; but twice,
we'll have to leave it to the jury to decide who they believe, the guys
who wrote the APA and owned and sold the deal and are still in the same
business, or some hack from a trade rag.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 25 2010 @ 04:25 PM EDT |
Judge Stewart desperately wants to give the appearance of
not letting anyone get away with anything, thus
> Defendant’s argument reads too much, or too little,
> into the Tenth Circuit’s opinion. [ Reply to This | # ]
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Authored by: Yossarian on Thursday, March 25 2010 @ 04:55 PM EDT |
I believe.
IMO the court want SCO to win.
It can't go to far because it will be turned on appeal,
but in the "gray areas" it supports SCO. My bet is that
Novell will lose in the jury instructions too.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 25 2010 @ 04:59 PM EDT |
Please place posts that are likely to cause arguments and inuendo here
so others can ignore them and PJ can delete them later.
[ Reply to This | # ]
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Authored by: polymath on Thursday, March 25 2010 @ 05:02 PM EDT |
On the bright side, if SCO cannot win with a court this favourable to their
cause they are totally done. Let's hope the jury is impartial and doesn't have
the wool pulled over its eyes. Otherwise there will be appeals from here to
kingdom come.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 25 2010 @ 05:23 PM EDT |
OgARa's paid for Fud piece is greater than a written contract in Utah. [ Reply to This | # ]
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- Not yet - Authored by: Anonymous on Thursday, March 25 2010 @ 06:17 PM EDT
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Authored by: Anonymous on Thursday, March 25 2010 @ 06:03 PM EDT |
Court was awesome today!!! When I got there I heard SCO's attorneys joking
that they didn't even have time to object to Novells motions before the court
denied them. Mr Brahm admitted that amendment 2 replaced the language in the
APA. Mr. Bradford saw the term sheet for amendment 2 for the first time today.
Christine Botosan made Novells expert witness look like a fool. and Mr. Brennan
learns the difference between an asset being purchased and a licensing agreement
all the while proving SCO's case for them when he crossed Mr. Frankenberg about
Tuxedo. All in all it was an awesome day in court today!! [ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 25 2010 @ 06:36 PM EDT |
I spent a bit of time thinking about why trolls do what they do.
Option 1: They do it to try to persuade the world that SCO has a case. I just
can't buy this reason. What, somebody trying to figure out the SCO situation
comes to Groklaw, sees all the documented evidence that PJ has accumulated, and
yet is going to be persuaded by some trolling that's two hundred comments down
in one of the three articles posted within 24 hours? Especially when the
trolling is immediately refuted with documented evidence? Is anyone delusional
enough to think that? Yeah, I know, SCO often seems to be delusional, but... I
don't buy it.
Option 2: They do it for entertainment value, like prank telephone calls.
Option 3: They do it from malice. In this view, Groklaw pointed out loud and
clear that the SCO would-be emperor had no clothes (or case), and those whose
hearts (or wallets) loved SCO couldn't refute it. All they can do is try to
attack the messenger. Sure, PJ kicks the worst of the trolls off, but it has a
price. In D&D terms, she maintains +5 anti-troll on the site, but it costs
2 stamina to maintain. It costs her time, energy, and aggravation. In a small
and bitter way, it consoles the trolls for SCO's losing.
I have no evidence, but my money's on option 3.
MSS2[ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 25 2010 @ 06:52 PM EDT |
Somehow, I picture a room full of lawyers sitting around for three weeks in
March writing motions for lead council to choose from, sign, and file. Remember
that Novell has had issues decided against them for no other reason than,
"You lost the opportunity to question that when you failed to
object/ask/read/brief/appeal that issue in a timely fashion." To me, they
are keeping their options open. By making the judge explain every ruling that
is questionable, they will have reams of argument to discuss with the Justices
of the Tenth Circuit, should the need arise.[ Reply to This | # ]
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Authored by: JamesK on Thursday, March 25 2010 @ 07:16 PM EDT |
{
And believe it or not, the court has already denied them.
}
Wow!!! Isn't that a surprise!!!
</sarcasm>
---
IANALAIDPOOTV
(I am not a lawyer and I don't play one on TV)[ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 25 2010 @ 10:16 PM EDT |
Dkt 260: Exhibit
29 contains a longer extract from Ms O'Gara's videotaped deposition taken on
March 23, 2007. Note that this pdf contains multiple exhibits; exhibit 29
begins on p.3 in the pdf.
(I am also informed that the
transcript of Ms. O'Gara's entire deposition is publically available from the
U.S. Court of Appeals for the Tenth Circuit. It is part of the SCO Group v
Novell record, filed in the appllant's appendix at pages 10022-10050.) [ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 25 2010 @ 10:47 PM EDT |
What a coincidence! Just in time for the closing arguments and verdict.
<a href="http://www.sltrib.com/business/ci_14760078"> New
article by Tom Harvey</a>[ Reply to This | # ]
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Authored by: kh on Friday, March 26 2010 @ 12:53 AM EDT |
It still owned the copyrights or at least the ones not owned by other people
like UCB. Or had very good grounds to think it did.
Malicious or not so what?[ Reply to This | # ]
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Authored by: Anonymous on Friday, March 26 2010 @ 01:13 AM EDT |
In Stewart denying Novell's 829, he has given Novell a very clear roadmap for
what should be included in their closing arguments (IMO). This includes what to
attack and what not to make the most effective case to the Jury.
Thought it was denied, I think it might work out well for Novell if they follow
his simple reasoning and focus in impeaching certain SCO witnesses and
highlighting their witnesses (which I have no doubt they will do).
I'm sure they can easily make a mockery of MOG.
- moosie.
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Authored by: Anonymous on Friday, March 26 2010 @ 02:58 AM EDT |
I write a song and therefore the copyright owner.(this is purely hypothetical as
I have no music sense at all). Mariah Carey sings it and it becomes a huge hit
and her signature song. I still own the copyright, get a royalty stream every
time she sing the song, and she runs Mariah Carey Inc by getting paid for
performing at venues every where.
How is that different from SCO running a business without the copyright of the
song, er software?[ Reply to This | # ]
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