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More SCO Lawyers in Novell Case; RedHat Letter
Friday, January 05 2007 @ 08:43 AM EST

Pacer has news on several cases. First, in SCO v. Novell, SCO has added the two Dorsey & Whitney lawyers it added to the team in SCO v. IBM in August to the team in the Novell case too:
01/04/2007 - 194
MOTION for Admission Pro Hac Vice of Devan Padmanabhan, Registration fee $ 15, receipt number 4681015433, filed by Counter Defendant SCO Group, Plaintiff SCO Group. (Attachments: # 1 Application for Admission # 2 e-filing Registration Form # 3 Text of Proposed Order)(James, Mark) (Entered: 01/04/2007)

01/04/2007 195 - MOTION for Admission Pro Hac Vice of John J. Brogan, Registration fee $ 15, receipt number 4681015434, filed by Counter Defendant SCO Group, Plaintiff SCO Group. (Attachments: # 1 Application for Admission # 2 e-filing Registration Form # 3 Text of Proposed Order)(James, Mark) (Entered: 01/04/2007)

SCO added two others in October as well. And in RedHat v. SCO, SCO has filed its report by letter to Judge Robinson:

01/04/2007 65 - Letter to The Honorable Sue L. Robinson, Chief Judge from Leslie A. Polizoti regarding 90-day status report regarding pending District Court of Utah Case No. 2:03CV0294 (DAK). (Polizoti, Leslie) (Entered: 01/04/2007)

Finally, in SCO v. IBM, as expected the motion for a little more time to respond to SCO's Motion to Reconsider the November 29th Order has been granted:

01/03/2007 912 - ORDER granting 911 Motion for Extension of Time to File Response/Reply re [894] SEALED MOTION. Replies due by 1/19/2007. Signed by Judge Dale A. Kimball on 1/3/07. (kla) (Entered: 01/04/2007)

So what's the deal with Dorsey & Whitney?

I have no idea. It has long had a connection to the SCO Group, but not in the litigation. Nolan Taylor, a Dorsey attorney in Salt Lake City, has this listed on Findlaw's bio for him:

# Issuer's counsel for The SCO Group, Inc. in connection with a PIPE transaction, secondary offering and recapitalization.

Mr. Taylor is well-known in Utah in the corporate law area and apparently has a sterling reputation. The firm has also handled such matters for SCO as getting back domain names and dealing with the SEC and advising SCO on share distributions.

It's a huge firm, in existence since 1912, with its main office in Minneapolis, Minnesota, and it handles all kinds of legal issues, as you can see from this Findlaw article about the firm. Considerably more details here. If you remember the Google-Microsoft litigation over Kai-Fu Lee, Dorsey & Whitney represented Google, and I thought they did a fabulous job.

There is a Salt Lake City office (a partner is on the board of UITA), but neither of the new attorneys added to the SCO v. Novell case is located there, which normally indicates their special areas of skill are more meaningful than location. But Findlaw says Padmanabhan specializes in patent law (he's also an electrical engineer). In a letter he sent to the USPTO on proposed rule changes, he says he's a partner. He probably wouldn't like Richard Stallman's views on software patents (that they harm developers and hinder development), and ... um...vice versa (Padmanabhan: "Strong, indisputably valid patents have no adverse effects, except for infringers.")

Brogan is an associate in the Trial, Regulatory and Technology group. He graduated from law school in 2003. "His practice emphasizes complex commercial litigation and arbitration. Specifically, Mr. Brogan focuses on technology-related litigation, including patent, copyright and trademark disputes."

A press release provides this self-description of the firm:

Clients have relied on Dorsey since 1912 as a valued, cutting-edge business partner. With over 700 lawyers in 20 locations in the US, Canada, Europe and Asia, Dorsey provides an integrated, proactive approach to its clients' legal and business needs. Dorsey represents a number of the world's most successful Fortune 500 companies from a variety of disciplines including leaders in the financial services, investment banking, life sciences, securities, technology and energy sectors, as well as nonprofit and government entities. For more information on the firm, visit

Here's another description of their technology focus:

Through its Technology group, Dorsey & Whitney provides patent, trademark, copyright, and other intellectual property advice to emerging and established businesses in diverse industries, including medical technology, biotechnology, computers and software, consumer products, telecommunications and electronics. The Technology group was named to Hewlett-Packard’s “Dream Team” and IP Worldwide’s 2001 “Team of 25,” both lists of those law firms most relied upon for IP counseling and litigation.

Dorsey & Whitney is one of the founding member firms of the TechLaw Group, which is dedicated to serving emerging growth companies in high technology businesses. The TechLaw Group is a national network of nine leading U.S. law firms located in the major high technology centers of the U.S. and eight affiliated law firms in Europe.

Dorsey & Whitney is a full-service law firm with experience in all specialty areas of interest to emerging businesses and venture capital firms, particularly in the high technology and service industries. Dorsey & Whitney also maintains offices in New York, Seattle, Washington, D.C., Northern Virginia, Minneapolis, London, Brussels, Hong Kong, Tokyo, Shanghai, Vancouver, B.C., Southern California, Toronto, Salt Lake City, Anchorage, Fargo, Rochester, Des Moines and Montana.

It was also involved in developing a license for software restricting use of code to co-op members and whereby each member would indemnify the other members against legal action from outsiders to the co-op, the Avalanche Group. When asked if their software could be described as open source, the Chairman of Avalanche said, "Well, we are calling it shared source." Hmm.

I think, judging by the fee-capping agreement between SCO and Boies Schiller in 2004, it may mean that either SCO has to pay Dorsey & Whitney, on top of what it already paid Boies Schiller, or Boies Schiller has to pay Dorsey from the money it got from SCO. The letter agreement says this:

We are pleased to confirm the terms of the retention of Boies, Schiller & Flexner LLP (“BSF”), Kevin McBride and Berger Singerman (together, the “Three Original Firms”) by The SCO Group, Inc. (together with its affiliates, “SCO”) as counsel to SCO in connection with the current litigation between SCO and International Business Machines Corporation (“IBM”), Novell, Inc., Red Hat, Inc., AutoZone, Inc. and DaimlerChrysler, Inc., including all related pending counterclaims and all related counterclaims that may be asserted in the future, all appeals in respect of such litigation and all corporate work, if any, directly related to the foregoing (together, the “SCO Litigation”)....

All aspects of the SCO Litigation, including the direction and allocation of work in connection with the SCO Litigation and the engagement of additional law firms on behalf of SCO to perform any work required in connection with the SCO Litigation, will be managed and directed by BSF in coordination with SCO’s general counsel. Notwithstanding the foregoing, BSF shall only engage new law firms on behalf of SCO for the SCO Litigation after consultation with SCO’s general counsel....

BSF shall be responsible for the negotiation of all legal fees to be paid to other law firms engaged to work on the SCO Litigation on behalf of SCO and shall have full authority to negotiate, on behalf of SCO, any fee arrangements deemed appropriate by BSF, including without limitation, any discounts, caps or contingency payments, provided that all legal fees related to the SCO Litigation incurred by law firms engaged on behalf of SCO by BSF or with the written consent of BSF on or after September 1, 2004 shall be paid from the quarterly payments of $2 million and any contingency payments shall be paid from the contingency payments in each case due pursuant to this engagement letter. The Three Original Firms shall be responsible, so long as SCO has made the payments required herein on a timely basis, for the payment of any legal fees accrued for work after September 1, 2004 by other law firms engaged to work on the SCO Litigation on behalf of SCO by BSF or with the written consent of BSF in the event that such quarterly payments or contingent payments are insufficient to cover any such legal fees, with BSF, Kevin McBride and Berger Singerman each being severally and not jointly responsible for 80%, 10% and 10% of such legal fees, respectively (each a “Required Contribution”). ...

This engagement letter does not govern the relationship SCO has or may have with Dorsey & Whitney LLP or other law firms related to litigation, corporate, securities, intellectual property, M&A, tax, employment and other legal services outside the scope of the SCO Litigation.

Now that Dorsey is inside the scope of the SCO litigation, as opposed to getting back domain names for SCO or dealing with the SEC, presumably somebody has to pay them.

The firm has been in the news recently in connection with a malpractice claim, as you can see from this November 2006 article, "Dorsey & Whitney Faces Malpractice Allegations Over Indian Casino Deal":

In August, U.S. Bankruptcy Judge Nancy C. Dreher issued a scathing 150-page decision pertaining to both cases in which she lambasted Dorsey & Whitney for putting itself in an "embarrassing situation." Bremer Business Finance Corp. v. Dorsey & Whitney, No. 0:06-CV-03962.

She wrote, "In a nutshell, this is a story about what happens when a lawyer makes a mistake, learns he has done so, and then, without disclosing the problem to the client, tries to repair the problem on his own."

And in 2003, the firm was sanctioned for piling on claims, including one for interfering with business that the client expected:

An unprecedented $400,000 fine against one of Seattle's largest law firms is shaking the legal community, prompting some lawyers to predict that local litigation may never be the same. Those applauding the fine say it will make lawyers think twice about "piling on" unfounded legal claims just to harass their opponents. Others say it will have a chilling effect on the zealous advocacy that lawyers owe to their clients, ultimately making it harder to redress the harms they've suffered.

In an opinion circulating throughout the city's law offices, a King County Superior Court judge found that the Dorsey and Whitney law firm had no good reason for filing eight of the 18 claims in a wealthy client's prolonged, high-stakes business dispute....

In her opinion, King County Superior Court Judge Suzanne Barnett wrote that lawyers sometimes need to say no to deep-pocketed clients even if it's "bad for business."

"It is unprofessional to accept at face value the emotional claims of one who, as in this case, is powerful, unaccustomed to being questioned, and who feels he has been wronged," she wrote....Typically, a lawyer would pay about $250 for violating the rule in question, Massong said. That rule requires all civil claims to be well-grounded in fact and law, and prohibits making claims just to harass someone, delay a case or drive up legal costs.

Well, I don't know the facts of the case, but that sounds like a good rule, huh? The firm does lobbying too, and here's some clients in 2005.

Here's a article on some turmoil and downsizing the firm went through a year or two ago. Interestingly, it seems when Sun became a client, HP fired the firm:

Mark Hogge, another former D.C. partner, who left in 2004 for Greenberg Traurig, and Aldo Noto, a former IP practice leader who fled to Andrews Kurth, blame Hendrixson for taking on Sun Microsystems Inc. as a client. Hewlett-Packard Co., another client and a Sun competitor, had warned that it would fire the firm if it did work for Sun. Hendrixson forged ahead, Hogge says, and HP took its business elsewhere: "It was sheer idiocy."

Hendrixson says the firm simply seized an opportunity to represent Sun and other clients that he won't name. And the decision to pursue the opportunity, he adds, was approved by other firm leaders as well.

The London office reportedly lost an unusual number of associates all at once. And there are reports that Dorsey may close its San Francisco office, but then, it had a new hire in the Palo Alto office.

One client, according to Business Weekly, was Microsoft, as you can see from this blurb on Business Weekly's site:

Cambridge lawyer helps Gates’ company to major patent litigation victory

Cambridge intellectual property lawyer Ian Craig has helped a Bill Gates company win a landmark patent litigation case that holds massive implications for e-commerce companies that sell downloaded information via the Internet. (08 June 2005)

You need a subscription to read the article. The company he represented was Corbis. Here's an award [PDF] it won recently, and another for doing pro bono work. The St. Paul Pioneer Press tells us how Dorsey & Whitney handles holiday stress:

Minneapolis law firm Dorsey & Whitney holds mindfulness and meditation sessions over the noon hour for its attorneys and staff in its downtown office. The lunchtime sessions are so popular that morning sessions were recently added for an extra boost during the holiday season. A Dorsey e-mail gets to the point: "Life can be stressful … and then … we add the holidays! Give yourself a gift this season and join us for this four-week series of mindfulness meditation and gentle (tension-relieving) stretching."

"It's a chance to chill out and calm down a bit and take a break," said Bryn Vaaler, a Dorsey partner who is the firm's director of professional development.

They may need that. For one thing, the firm went with Windows Media on Windows 2000 in 2000, as Microsoft crowed at the time. The legal software they use [PDF] seems to also indicate they are indeed a Microsoft-dependent firm.

I'm thinking that may mean they'll have to represent SCO Group and face upgrading to Vista, both at the same time. Talk about a need for de-stressing mindfulness.

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