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
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

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

Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal

User Functions



Don't have an account yet? Sign up as a New User

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.

SCO v. IBM Hearing Date Changed to April 23rd at 2:30 PM Before Judge Benson ~pj
Saturday, February 11 2012 @ 03:33 PM EST

There's been a slight change in the hearing date for the upcoming SCO v IBM hearing regarding SCO's desire to partially reopen the case. The new date is April 23, 2012 at 2:30 Utah time in Room 246. It's set to be heard by Judge Dee Benson, the new judge assigned, who, I gather, was unable to find a way to recuse himself.

Kidding. But there were a lot of recusals on this case.

Here's the latest:

02/07/2012 - 1105 - ***AMENDED*** NEW DATE AND TIME NOTICE OF HEARING ON MOTION re: 1095 MOTION to Reopen Case : Motion Hearing set for 4/23/2012 02:30 PM in Room 246 before Judge Dee Benson. (reb) (Entered: 02/07/2012)

So, it's Judge Benson. I surely hope you can go to the hearing, some of you, and send us a report.

Old timers here at Groklaw will recall that it was Judge Benson who presided over the Caldera v. Microsoft litigation. That means that despite many of the sealed documents being destroyed by his court order in 2003, this judge knows the complete story, including the side trip initiated by Microsoft in the Microsoft v. Novell antitrust litigation. Not that it helped them at all. Microsoft has filed its motion in that case to have the judge toss out Novell's claims as a matter of law, and I'll get that document up for you next.

In addition to the materials I gathered for you about Judge Benson earlier, here's a bit of info from the Federal Judicial Center website. As you can see, he was "Chief of staff, U.S. Sen. Orrin Hatch, 1986-1988", a detail I pointed out earlier. Here's a bit more detail, from the US Department of Justice.

Here's a recent, rather snippy article about him in the Salt Lake Tribune:

When attorneys for DeChristopher claimed they had it on good authority that Sen. Orrin Hatch, who was instrumental in getting Benson the judicial appointment, had discussed with Benson the proper sentence DeChristopher should get before the actual sentencing, Hatch and Benson denied they ever had such discussions.

But I wrote a few years ago about how Benson inadvertently embarrassed Hatch when Benson was on a panel at a Utah State Bar convention in Sun Valley, Idaho. Benson remarked that Hatch spoke to him while he was hearing a case in 2004 that challenged the constitutional validity of the Grand Staircase-Escalante National Monument and told the judge that he knew that he would ďdo the right thing.Ē

Benson told the story on the panel to show his independence, because he ruled in favor of the monumentís legal existence and he was under the impression that Hatch opposed it.

I don't understand why Hatch would be discussing any specific case with any judge, and so there was a bit of uproar about that. Since SCO is represented by Hatch's son, I can't help but hope there is no such discussion in this case. Then again, Utah is Utah. Judge Dale Kimball was appointed by Senator Hatch as well, and that worked out just fine. So we'll just have to wait and watch. Here's a rebuttal to the Salt Lake Tribune article, written by an attorney who practices in Utah, Curt Bentley of Bentley Briggs & Lynch, who was appalled at how quickly people assume bias on the part of judges, just because they may rule contrary to one's wishes, and he raises some important points to keep in mind:
In the vast majority of cases, our judges get it right. But if they ever miss one (which, I understand, does have major effects on the person whose rights are negatively affected ó and I canít say whether Judge Benson missed one in the Dahl case) weíre often not willing to give them the benefit of the doubt, but immediately attribute the worst motives to them, accusing them of misconduct, fraud, or even treason. And then we wonder at the fact that neither side in a political debate trusts the judiciary, and we shake our heads in amazement when the Utah legislature denies a qualified, distinguished, near-universally admired judge a place on our appellate courts because they disagreed with one of his rulings.

Itís a good thing that our judges are protected from political retribution for their sentences, because, if they werenít, retribution would, it seems, be all too quick in coming. Judge Benson is a distinguished judge who has served this state well in multiple capacities. I suspect he would be the first to admit that heís probably gotten a few decisions wrong in his 21 years. But that doesnít mean he sentences on race, religion, or political affiliation. And itís unfortunate that Rolly believes itís OK to claim that he does.

Politics ruins clear thinking, I've noticed over time, so I encourage everyone to wait and see. Remember how we thought, including me, that the new judge assigned to SCO v. Novell, Judge Ted Stewart, might show bias? I was totally, completely wrong about that fear, and so far, I have to say that Utah has been pretty impressive in handling a very difficult saga. Still, that close connection to Senator Hatch... well, I can't get it out of my mind altogether, all things considered. And the fact is, with so many recusals, there's hardly anybody left to call on. It's Judge Benson or Judge Stewart. And in Utah, if you stood in the street in Salt Lake City, and threw some confetti up in the air, at least some of it would land on somebody with a connection to Senator Hatch. He's been their senator a very long time.

Judge Benson not only has served in Utah, by the way. He completed a term on the FISA court in May. And he's co-author of a 966-page book for lawyers on the Utah rules of evidence, Mangrum and Benson on Utah Evidence. And Judge Benson has a twin brother, Dee Benson, who writes a column for the Deseret News, and who mostly seems to write about sports.

Keep in mind too, in the end, if the case is reopened, it's really up to the jury. A judge can tilt things, though they are not supposed to, but even if they do, the jury has its own mind and its own authority.


SCO v. IBM Hearing Date Changed to April 23rd at 2:30 PM Before Judge Benson ~pj | 57 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Authored by: kawabago on Saturday, February 11 2012 @ 04:28 PM EST
Put em all here, eh!

[ Reply to This | # ]

News Picks
Authored by: kawabago on Saturday, February 11 2012 @ 04:29 PM EST
Here please.

[ Reply to This | # ]

Off Topic
Authored by: kawabago on Saturday, February 11 2012 @ 04:30 PM EST
All off topic stuff here please!

[ Reply to This | # ]

Politics ruins clear thinking
Authored by: kawabago on Saturday, February 11 2012 @ 04:47 PM EST
Pandering to the electorate ruins clear thinking.

[ Reply to This | # ]

SCO v. IBM Hearing Date Changed to April 23rd at 2:30 PM Before Judge Benson ~pj
Authored by: Anonymous on Saturday, February 11 2012 @ 09:23 PM EST
And he's co-author of a 966-page book for lawyers on the Utah rules of evidence,
Mangrum and Benson on Utah Evidence.
Now that might make things interesting.


[ Reply to This | # ]

SCO is doubly, trebly bankrupt. How can this go on?
Authored by: benw on Sunday, February 12 2012 @ 03:13 AM EST
TSG's latest MORs were released the other day. They owe over $3 million in
post-petition debts -- not counting the Yarro "loan" of $2 million and
petition debts of almost $6 million. They have $275,000 in the bank with
their only other "assets" being about $175,000 in prepaid expenses (?)
and a
mysterious sum of about $1 million that seems to be SCO Group owing SCO
Operations owing the subsidiaries and then back again.

So, even the bankrupt dead "TSG" husk of this company is bankrupt

And what's UnXis done for us lately?

[ Reply to This | # ]

Where is this Going?
Authored by: sproggit on Sunday, February 12 2012 @ 06:42 AM EST
I went back and looked through the Groklaw history, to try and figure out a couple of points relating to the sale of the Unix business to Unxis.

I found this article, in which PJ provides us with some of the details of the sale. At the time they were proposed sale terms, so I don't think we can take them as gospel.

Bottom line is that Unixs - which included our old friend Stephen Norris -put forward the following winning bid:-

unXis submitted a bid, which included (i) $600,000 in cash and (ii) 2-year warrants to purchase 3% of the outstanding unXis common stock. The unXis bid excluded the net working capital of the business worth, in OPA's estimate, from $700,000 - $900,000. unXis also agreed to pay up to $50,000 of cure costs. Furthermore, the unXis bid included the acquisition of all of the non-Debtor foreign subsidiaries and provided for the employment of all current employees in the non-Debtor foreign subsidiaries. The liability of having to wind-down these entities has not been determined but OPA preliminarily estimates that those costs would easily exceed $500,000 and possibly exceed $1,000,000 - exclusive of time and expenses related to professionals. Importantly, prior to the Final Auction Date, unXis deposited the full amount of the purchase price into escrow with Blank Rome.
So I'm curious.

Even at this late stage in the bankruptcy - wasn't it like, more than four years ago that TSG filed for Chapter 11? - the company still has "net working capital" of "$700,000 - $900,000" [oh, and am I the only one who thinks that a pretty huge margin of error for a bankruptcy trustee charged with filing MoRs to come up with?] left in the bank?

But here's the point:

The SCO group have $700-$900k in the bank. Unxis were offering $600,000 for the intellectual property and $50k of costs. [OPA estimated that they would need to spend half a million dollars in winding-up costs... but that still leaves some million or so left in the kitty].

At no point did Judge Kevin Gross ask how much of the sale proceeds would be paid to creditors.

At no point did Judge Kevin Gross state the obvious, which was that if The SCO Group felt that the portion of Unix IP that had found it's way into the Linux kernel was worth $5 Billion, how did they value the entire code base at $600,000?

At no point has Judge Kevin Gross asked Judge Cahn precisely what is going on now that there is nothing left but possible litigation...


i) Does Judge Cahn believe that he has to do something to justify remaining debtor-in-possession in order to be able to suck the corpse dry?


ii) Does Judge Cahn think that if he rattles sabres at IBM, that with the right inducement they can be convinced to cough up enough cash for Cahn to be able to keep his gravy train running a little bit longer?


iii) Could it possibly be the case that someone at the back of this - say an original equity shareholder in The SCO Group, like Ralph Yarro - is still so obsessing on getting their beellions that they, as majority shareholder in the corpse, are directing Cahn to do this?

Are there other alternatives?

Is it possible that this makes sense from the right perspective? Somewhere? And if so, from where?

Final question: though I am not entirely comfortable in asking this, nor in challenging the integrity of a participant in these proceedings, can it be said that Judge Gross has fulfilled his obligations here? Where is the oversight?

[ Reply to This | # ]

Judge Dee?
Authored by: Anonymous on Monday, February 13 2012 @ 09:49 AM EST
Not this one surely?

If so, look forward to floggings of the guilty party!

[ 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 )