decoration decoration
Stories

GROKLAW
When you want to know more... 		decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books

Gear

Groklaw Gear

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

You won't find me on Facebook

Donate

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

STORIES
No new stories

COMMENTS last 48 hrs
No new comments

Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
SCO Files a Request to Submit for Decision in IBM Case ~pj
Friday, June 15 2012 @ 11:21 AM EDT

Once again, SCO asks the court to let it go forward or at least render a decision on whether or not its case against IBM can get out of the mud and go to trial.

I can't tell you how much I look forward to more SCO highjinks.

NOT.

I look forward to it about as much as IBM and the judge and probably Boies Schiller, who isn't getting paid unless they ... hahaha... win. And unless they win, after the Oracle debacle, I'm afraid they will lose their standing in the league. And you? You can't wait, I'm guessing? Nope? Well, who then? Mr. Ralph Yarro, I presume? Here's a recent, slanted article in the Salt Lake Tribune, where SCO mysteriously is said to be the owner of UNIX once again, just like in their legal fantasy league of long ago.

Does the picture of Ralph Yarro in that article look like the guy in the red shirt and the misleading signs in this story we did in 2003?

Here's part of what Tom Harvey reverently wrote about Yarro and SCO in the Salt Lake Tribune:

But in 2004 Yarro and Canopy bitterly parted ways and fought over his ouster in competing lawsuits. Yarro ended up as the single largest shareholder of The SCO Group, a Canopy company that held the rights to the Unix computer operating system.

In 2003, SCO filed an infamous lawsuit against IBM, accusing it of contract violations for allegedly using SCO’s Unix operating system as the basis for changes that made the Linux operating system a viable competitor. SCO was accused of launching an attack on the open-source community that backed Linux and Yarro was roundly vilified. The lawsuit remains pending but SCO eventually ended up in bankruptcy court, where it still remains today. Unix was sold to another company.

In the mid-2000s, Yarro also was known for his extensive anti-pornography campaign.

Some of us, of course, think the SCO legal antics were pornography of a sort.

Harvey makes it sound like the Yarro/Canopy litigation resulted in a win for Yarro, since he got all those yummy shares in SCO. Stop and think, people. Canopy didn't just fall off a turnip truck. It accurately forecast the value of those shares, I'd say. And it was a settlement, not a win at trial.

And notice that there is no mention in the article of the SCO v. Novell lawsuit, which Novell won, and which firmly rejected SCO's claim to ownership of UNIX copyrights. What SCO had is the code and the right to license it, and any UnixWare code it wrote after 1995, and only in their dreams is that the same thing as UNIX. It sold that on, even. Novell owns UNIX copyrights, and the X Group owns the trademarks.

Anyway, my point is, Yarro is the single largest shareholder in SCO, the lucky duck. The trustee in bankruptcy more or less aced him on getting any moolah repaid on the loan it gave SCO to keep litigating, some $2 million plus, and his SCO shares are worth nothing unless the IBM case is a winner for SCO, so that's who might be interested in going forward, I'm guessing.

If you are curious about that litigation with Canopy, we covered that smarmy mess too here. Wear a bib and have a trash can handy, in case you suddenly feel the urgent need to throw up. Harvey of the Salt Lake Tribune forgot to mention something about the Canopy case that you'll bump into if you read up on it. Two people died.

Here are the filings:

06/14/2012 - 1107 - REQUEST to Submit for Decision re 1095 MOTION to Reopen Case filed by Plaintiff SCO Group. (Attachments: # 1 Exhibit A - TSG Order Granting IBM Stay Modification)(Hatch, Brent) (Entered: 06/14/2012)

I'm afraid SCO has a point. The delay has been because the case keeps being reassigned from one judge to another. It was supposed to be heard in April, but then the case got reassigned again. Unless Utah has more judges to play musical chairs some more with this awful assignment, I think Judge Nuffer is stuck. As am I.

Here's the SCO request, as text:

********************

Brent O. Hatch (5715)
[email]
Mark F. James (5295)
[email]
HATCH, JAMES & DODGE, PC
[address, phone, fax]

David Boies (admitted pro hac vice)
[email]
Robert Silver (admitted pro hac vice)
[email]
Edward Normand (admitted pro hac vice)
[email]
BOIES SCHILLER & FLEXNER LLP
[address, phone, fax]

Stuart Singer (admitted pro hac vice)
[email]
BOIES SCHILLER & FLEXNER LLP
[address, phone, fax]

Counsel for The SCO Group, Inc.

_____________

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

_____________

THE SCO GROUP, INC., by and through the
Chapter 11 Trustee in Bankruptcy, Edward N.
Cahn,

Plaintiff/Counterclaim-Defendant,

vs.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

_________

THE SCO GROUP, INC.’S REQUEST TO
SUBMIT FOR DECISION

Civil No.: 2:03-CV-00294-DN

Honorable David Nuffer

Pursuant to Local Rule 7-3, Plaintiff/Counterclaim-Defendant, The SCO Group, Inc. (“SCO”) respectfully submits this Request to Submit for Decision, requesting the Court to rule on SCO’s pending Motion to Reopen the Case (the “Motion”) in light of the recent order lifting the stay of IBM’s counterclaims by the bankruptcy court presiding over SCO’s Chapter 11 proceedings (the “Bankruptcy Court”). Where IBM agreed in its opposition to the Motion that this Court “should reopen the case when the stay has been lifted as to IBM’s counterclaims” and stipulated in the Bankruptcy Court that “IBM shall not oppose the reopening of the Utah Action,” SCO respectfully submits that the Motion should be granted forthwith.

BACKGROUND

1. On November 4, 2011, SCO filed its Motion to Reopen the Case (Docket No. 1095) in order to proceed with its remaining unfair competition and tortious interference claims. Those claims, which the Chapter 11 Trustee overseeing SCO’s bankruptcy estate deems meritorious, are the only remaining assets of the estate.

2. On November 21, 2011, Defendant/Counterclaim-Plaintiff International Business Machines Corporation (“IBM”) filed its opposition to the Motion. (Docket No. 1100.) Even though the Bankruptcy Code had automatically stayed all of IBM’s counterclaims against SCO without disturbing SCO’s right to pursue its claims against IBM, IBM opposed the Motion on the grounds that litigating SCO’s claims without IBM’s counterclaims “would be inefficient and fundamentally unfair.” (Id. at 1.)

3. Accordingly, IBM asserted that the Court “should reopen the case when the stay has been lifted as to IBM’s counterclaims.” (Id. at 6 (emphasis in original).) In fact, IBM argued for an order “providing that this case shall be reopened within 5 days of the filing of a

1

notice (by any party) that the stay of IBM’s counterclaims has been lifted.” (Id. at 14 (emphasis added).) SCO hereby provides such notice.

4. On November 28, 2011, Judge Waddoups1 scheduled a hearing on the Motion for April 18, 2012. (Docket No. 1101.) Judge Benson subsequently moved the hearing date to April 23, 2012. (Docket No. 1105.)

5. On December 8, 2011, SCO filed its Reply Memorandum in Support of Its Motion to Reopen the Case. (Docket No. 1102.) The Motion was thenceforth ripe for adjudication.

6. On February 16, 2012, while the April 23, 2012 hearing was still pending, SCO and IBM stipulated in SCO’s bankruptcy proceedings to modify the automatic stay of IBM’s counterclaims so as to permit IBM to “defend the Utah action and prosecute its Counterclaims against SCO.” (Ex. A at 4.) As part of that stipulation, IBM also agreed that “IBM shall not oppose the reopening of the Utah Action.” (Ex. A at 5, ¶ 4 (emphasis added).) On February 17, 2012, the Bankruptcy Court entered an order approving the stipulation and modifying the automatic stay “as set forth” in the stipulation. (Id. at 1.)

7. On April 2, 2012, following the transfer of the hearing from Judge Benson’s calendar to this Court’s calendar, the Court vacated the April 23, 2012 hearing.

2

REQUEST

Because SCO’s Motion to Reopen the Case has been pending since December 8, 2011, and was originally set for a hearing to be held on April 18, 2012, SCO respectfully requests that the Court submit the Motion for a decision, pursuant to Local Rule 7-3.

In addition, because IBM agreed that the Court should “reopen the case when the stay has been lifted as to IBM’s counterclaims” and argued for an order “providing that this case shall be reopened within 5 days of the filing of a notice (by any party) that the stay of IBM’s counterclaims has been lifted,” SCO respectfully asks the Court to grant SCO’s Motion forthwith and proceed with the adjudication of the unresolved summary judgment motions in this case, which have been pending since 2006. Indeed, because IBM secured the lifting of the automatic stay on its counterclaims in the Bankruptcy Court by agreeing “not [to] oppose the reopening of the Utah Action,” the Motion should be deemed to be unopposed.

Should the Court grant the Motion, SCO respectfully submits that the Court would benefit from oral argument on the unresolved summary judgment motions and respectfully requests that the Court schedule such argument. In addition, insofar as the Court would benefit from supplemental briefing regarding any changes in the law relevant to the unresolved summary judgment motions, SCO remains prepared to provide such briefing at the Court’s direction.

3

DATED this 14th day of June, 2012.

By: /s/ Brent O. Hatch
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch

Mark F. James
BOIES, SCHILLER & FLEXNER LLP
David Boies
Robert Silver
Stuart H. Singer
Edward Normand

Counsel for The SCO Group, Inc.

_______________
1 On November 9, 2011, this case was reassigned to District Judge Clark Waddoups following District Judge Tena Campbell’s recusal (Docket No. 1099); on December 9, 2011, the case was in turn reassigned to District Judge David Sam following Judge Waddoup’s recusal (Docket No. 1103); on December 14, 2011, the case was again reassigned, this time to District Judge Dee Benson, following Judge Sam’s recusal (Docket No. 1104); and on March 31, 2012, following the appointment of this Court to the District Court bench, the case was reassigned to this Court (Docket No. 1106).

4

  


SCO Files a Request to Submit for Decision in IBM Case ~pj | 273 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Errata
Authored by: NigelWhitley on Friday, June 15 2012 @ 11:43 AM EDT
Please post any errors under this thread. This is for errors in
spelling/grammar/links, not for disagreements on content or presentation (Not
that there should be any :-) ).

Kindly include the correction in the title where posssible e.g.
korect-->correct

Thank you.
---------------
Nigel Whitley

[ Reply to This | # ]

I can't wait...
Authored by: Anonymous on Friday, June 15 2012 @ 11:44 AM EDT
It is a bit like one of those old horror films where the hero keeps killing the
monster, only for it to be waiting when he opens th closet door.

Well, perhaps Cravath can finally put a stake through SCO's heart.

[ Reply to This | # ]

Off-topic
Authored by: NigelWhitley on Friday, June 15 2012 @ 11:49 AM EDT
Please place off-topic comments under here.

Only off-topic comments are on-topic here and vice versa.

Thank you.
------------------
Nigel Whitley

[ Reply to This | # ]

Newspicks
Authored by: NigelWhitley on Friday, June 15 2012 @ 11:55 AM EDT
Please include comments on and suggestion for articles listed in the Newspicks
section under this thread. Kindly identify the article when posting a new
sub-thread and include a link to it so it can be referenced after the Newspicks
item has scrolled down the dimming passage of memory.

For clickable links choose a Post Mode of "HTLM Formatted" and follow
the advice below it.

Thank you.
-------------------
Nigel Whitley

[ Reply to This | # ]

Comes Stuff Here
Authored by: SilverWave on Friday, June 15 2012 @ 11:59 AM 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 | # ]

Corrections (as opposed to Errata)
Authored by: nsomos on Friday, June 15 2012 @ 12:05 PM EDT
The corrections thread must have 'corrections' in the title
properly spelled. You can have as much fun in the body of
the post starting the corrections thread as you like, but
it is important that the title of the thread starter have
'corrections' properly spelled in it.

Thanks

[ Reply to This | # ]

SCO Files a Request to Submit for Decision in IBM Case ~pj
Authored by: Steve Martin on Friday, June 15 2012 @ 12:21 PM EDT

On November 4, 2011, SCO filed its Motion to Reopen the Case (Docket No. 1095) in order to proceed with its remaining unfair competition and tortious interference claims. Those claims, which the Chapter 11 Trustee overseeing SCO’s bankruptcy estate deems meritorious, are the only remaining assets of the estate.

So it's official; TSG Group acknowledges in open court that their only viable product is litigation.

Someone please remind me why they still enjoy Chapter 11 protection from their creditors.

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

[ Reply to This | # ]

How nice of SCOG
Authored by: nsomos on Friday, June 15 2012 @ 12:34 PM EDT
SCOG writes ...
"IBM argued for an order “providing that this case shall be reopened within
5 days of the filing of a notice (by any party) that the stay of IBM’s
counterclaims has been lifted.” (Id. at 14 (emphasis added).) SCO hereby
provides such notice."

Now when there is less than nothing left for IBM to get with a win on
counterclaims, SCOG now has no objection to these proceeding.
I hope there is still a chance that corporate veils can be lifted
and maybe even a chance of going directly after McBride and/or Yarro.

I realize that this is probably too much to hope for.

Still ... a guy can dream, can't he?

[ Reply to This | # ]

That was below the belt
Authored by: mexaly on Friday, June 15 2012 @ 12:47 PM EDT
How dare you compare SCO to pornography? Pornography has a bad enough
reputation as it is.

---
IANAL, but I watch actors play lawyers on high-definition television.
Thanks to our hosts and the legal experts that make Groklaw great.

[ Reply to This | # ]

Salt Lake Tribune article slanted?
Authored by: Anonymous on Friday, June 15 2012 @ 12:53 PM EDT
slanted article in the Salt Lake Tribune, where SCO mysteriously is said to be the owner of UNIX once again, just like in their legal fantasy league of long ago.
I read the article that the link took me to, and it says that SCO was:
a Canopy company that held the rights to the Unix computer operating system.
That statement was in the past tense, and it is correct as far as I can tell. They did own some rights to UNIX. They didn't own UNIX, but the article doesn't say that. Later in the article it says:
SCO eventually ended up in bankruptcy court, where it still remains today. Unix was sold to another company.
This again is not incorrect. I saw nowhere in the article that makes any claims that SCO owns UNIX. I also see no evidence of anything in the article that indicated a favorable slant toward SCO or Yarro. In fact, at one point it says:
SCO was accused of launching an attack on the open-source community that backed Linux and Yarro was roundly vilified.
Sounds like fairly unbiased reporting to me. If there was some statement in that article where it said "SCO owns UNIX" then I must have missed it.

[ Reply to This | # ]

Ralph and Daryl could be brothers
Authored by: Anonymous on Friday, June 15 2012 @ 01:29 PM EDT

From the image in the article, they could potentially pass as brothers. Might explain why they got along so well.

RAS

[ Reply to This | # ]

How is SCO still alive?
Authored by: Anonymous on Friday, June 15 2012 @ 02:03 PM EDT
The last MOR SCO (sorry, TSG) filed shows that, at the end of February, they had
about 1 month's cash and no revenue. The bank account should have run dry more
than 2 months ago. How are they still going?

[ Reply to This | # ]

SCO Files a Request to Submit for Decision in IBM Case ~pj
Authored by: Anonymous on Friday, June 15 2012 @ 03:31 PM EDT
Just for fun, I wonder what's going through the mind of Judge Cahn. I mean who in their right mind would think anyone has anything to gain from reopening the suit?

Is he bored? Is retirement getting to him and he wants to relive the "good old days".

Did he wake-up one day and think, "What a beautiful-sunny/awful-rainy day, I think I'll start-up the old IBM lawsuit."

Did he have an fight with his wife and he wants to take out his bad temper on someone?

I mean he can't possibly think he can win anything and he can't possibly believe IBM would settle after all this time. If he does, that must qualify as evidence of senility or alzheimer's.

Or what went through the mind of Boies when he received Cahn's call to reopen the IBM suit... ok, that's probably unprintable, but did he at least try to dissuade Cahn?

Did he at least tell Cahn he was trying to beat a dead horse? A moldy, rotten, decaying, long dead horse that should have been buried long ago?

Boies must know there's nothing to gain. Worse, every minute he spends on the case costs him money. Ok, that's just karma.

[ Reply to This | # ]

My own personal opinion
Authored by: Anonymous on Friday, June 15 2012 @ 04:31 PM EDT
I think that the Federal Court in Salt Lake is essentially stalling the
bankruptcy court in Delaware. The Federal Court is saying, "You can't wait
forever. You have to convert SCO to Chapter 7 and end this farce."

So far, the bankruptcy court has been holding on, saying, "But they could
make a viable business of it, if they could just get the case re-opened!"

But the Federal Court, which actually knows what a turkey SCO's case is, doesn't
want to waste their time with it (reasonably enough). They can also (if they
bother to do even the slightest research) see what SCO's financial situation is.
In fact, if SCO filed a MOR in February that indicated that they had one
month's money left, and it's now June... why aren't they dead right now? And,
the Federal Court might think, why bother to re-open a case where one party
isn't going to live long enough to see the finish?

Note well: This is just my personal opinion. I clearly don't speak for the
Federal Court.

MSS2

[ 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 ) 		Site layout based on Woodlands theme by Bryan Bell.
Groklaw logo by John Crowley.
News Picks logo by Ted Thompson.
Powered By GeekLog
Created this page in 0.05 seconds