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Novell Hires Another Lawyer for the Team -- Guess What He's Good At?
Thursday, June 09 2005 @ 09:40 PM EDT

Now this is interesting. Novell has added a new lawyer to the team handling SCO v. Novell. Here's [PDF] the pro hac vice Order of Admission. His name is Kenneth Brakebill, and guess what he is an expert in? No. Guess.

Here's a hint: It's a paper he wrote, called "The Application Of Securities Laws In Cyberspace: Jurisdictional And Regulatory Problems Posed By Internet Securities Transactions" [PDF]. His article is on page 5. Here's the overview:

Analyzes the international jurisdictional problems created by securities transactions over the Internet. Considers similar problems regarding the interface between state and federal jurisdiction.

And here's a paragraph, to give you an idea of what the overview is talking about:

The SEC has now stated that it will be very aggressive in asserting broad jurisdiction over cyberspace activities. A US court can exert subject matter jurisdiction if the defendant commits significant acts in the US or if the defendant’s actions cause significant adverse effects in the US, so courts must formulate new rules on the “location” of conduct to apply to cyberspace activities. If, for example, someone posts fraudulent statements on a Website in a foreign country, but those statements are accessed by a US investor, the court must determine where the fraudulent conduct “occurred” — at the situs of the Website or the location of the person who reads the material. The effects prong of the jurisdictional test may also create problems. The court must determine whether the mere fact that cyberspace messages from anywhere in the world can be accessed and read in the US is a sufficient effect to support jurisdiction.

The paper was written some time ago, so I don't know how aggressive the SEC is currently, or how aggressive we can expect it to be going forward. But if you wanted to ask a lawyer what happens if a company makes untrue statements over the Internet and some poor slob buys stock based on the false claims, he's your man. Here's a firm bio with his picture, and another, Findlaw, bio, and as you can see, he's a litigator.

I don't know why Novell has hired him. But I know one thing. You don't hire a litigator to write your corporate bylaws.

Litigators are not like other people. They're not even like other lawyers. It's a breed apart. Litigators live and breathe to fight, and they like to win. It's like chess players. They have to love the moment they say, "check" to be willing to spend so much time plotting and planning and strategizing.

So, Novell has hired a litigator.

I think if you go to Pacer and search for Novell, and then compare it to any other company, you'll find they are not afraid of litigation, and they are very aggressive about protecting their rights. At least, that is my impression, after seeing page after page of cases as far as the eye can see. Now, I don't know why they hired a new lawyer with "extensive trial experience" right now. Maybe it's just because they anticipate an appeal, no matter which way things go, or maybe they are thinking of putting SCO through an experience, a taste of their own medicine. Who knows? Time will tell, but it does look like they have found a particularly good litigation attorney. From the first bio:

Mr. Brakebill has spent a significant amount of his time representing technology company clients in industries such as semiconductor chip design, semiconductor chip manufacturing, computer networking and enterprise infrastructure software.  Clients have included Altera Corporation, BEA Systems and Novellus Systems.  These representations have included patent infringement actions, copyright-related matters, breach of contract actions, and cases involving tortious interference with contract and unfair business practices claims.  Recently, Mr. Brakebill has also represented public companies in internal investigations and SEC investigations.

Mr. Brakebill has been involved in a number of trials representing plaintiffs and defendants in federal and state court.  Recently, he participated in a trial in the United State District Court, Northern District of California, which resulted in a unanimous jury verdict for the firm’s client, a $36 million judgment and a permanent injunction order.  In that case, the jury found that the defendant infringed the semiconductor chip designs of the firm’s client and tortiously interfered with its software license agreements.  Mr. Brakebill’s other recent trial work has included the successful resolution of a patent infringement action between two semiconductor chip designers in the Northern District of California; and a $5 million damages award on behalf of a semiconductor equipment manufacturer in a breach of contract action against a competitor.

From the second bio:

Mr. Brakebill has spent a signficant amount of his time representing technology company clients in patent and copyright-related matters and in actions involving breach of contract, tortious interference with contract and unfair business practices claims. His recent trial work has involved the procurement of a unanimous jury verdict and permanent injunction in the Northern District of California in a dispute involving infringement of semiconductor designs and tortious interference with software license agreements; the successful resolution of a patent dispute in the Northern District of California; and a breach of contract arbitration between semiconductor equipment manufacturers in San Francisco.

Now, mind you, I have no inside info. I really mean it when I say, I have no idea why they hired a new man now. But they have, and in my dreams . . .well . . . I bet you can guess.


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