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HP: I'm In! Send All SCO's Bankruptcy Notices Please! - Gupta Prez of SCO Operations
Tuesday, October 02 2007 @ 09:26 PM EDT

Now it's Hewlett-Packard that has answered the call from the bankruptcy court and filed a notice of its interest in SCO's bankruptcy, its Notice of Appearance and Request for Special Notice [PDF].

You'll see that the wording isn't exactly the same as IBM's [PDF] notice. That's because HP is on the the top 20 creditors' list [PDF] (technically, the hilariously named "HP NonStop Royalty Accounting"), so it wants all notices of creditors' meetings too and any plans filed. Plans means this in a Chapter 11 bankruptcy, and as you can see in this section on who can file a plan, it can be the debtor, or if the debtor fails to timely do so or if the debtor's plan isn't accepted, then it could be the trustee, any of the creditors, an equity security holder, any party in interest. Someone has to come up with a survival plan on how to reorganize so as not to send SCO down the drain while also not totally stiffing the creditors or unfairly paying one to the detriment of all others, etc.

So, with HP showing up, I'd say SCO's creditors' committee begins to appear. What a wonderful time to be named President of SCO Operations, Inc. How lucky can Sandy Gupta get?

In fact, he's "thrilled":

"After having worked at SCO for over a decade, I am thrilled to better serve our customers and partners in this new capacity," said Sandy Gupta, President of SCO Operations, Inc. "As our primary focus, we will strengthen and expand our UNIX product offerings to our partners and reinvigorate our channels in doing so. The SCO UNIX partner and customer ecosystem has also represented a great channel to launch SCO Mobile products and services complementary to the core UNIX products."

All executives quoted in press releases are invariably "thrilled", I've observed, no matter what it's about. We'll keep on the watch to see how thrilling this turns out to be. Indeed, the press release includes the "Forward Looking Statement" sentences, including these:

We wish to advise readers that a number of important factors could cause actual results to differ materially from historical results or those anticipated in such forward-looking statements. These factors include, but are not limited to outcome and development of our Chapter 11 case, court rulings in our bankruptcy proceedings, the impact of the bankruptcy proceedings or other pending litigation, our cash balances and available cash, continued competitive pressure on the Company's operating system products, which could impact the Company's results of operations, adverse developments in and increased or unforeseen legal costs related to the Company's litigation, the inability to devote sufficient resources to the development and marketing of the Company's products, including the UNIX and mobile services and development platform, and the possibility that companies with whom the Company has formed partnerships will decide to terminate their relationship to the company, or reduce customers and resources devoted to, their partnership with the Company.

But back to HP. It's one of those companies SCO, in the IBM litigation alleged in its Second Amended Complaint was influenced by IBM to keep SCO from succeeding in its business after SCO dreamed up SCOsource. Remember that whole story [PDF] about the famous Ms. Smith of IBM who SCO claimed became furious at LinuxWorld in 2003 when she first learned about SCOsource and allegedly talked to a guy at HP and tried to talk HP out of doing any further business with SCO? HP denied it, saying it decided instead not to talk to Ms. Smith again, and indeed it continued to show up as sponsoring SCO Forums. Anyway, according to SCO, HP was another company SCO claimed was out to get them after IBM tortiously interfered. I do hope SCO is right about that. All right. Calm down. I'm kidding. Sort of.

Here are the Federal Rules of Bankruptcy Procedure, which the notice references. Rule 2002 lists all the types of notices that are sent, all of which HP wants, as well as the notices regarding disclosure statements and plans of reorganization, here at Rule 3017. HP wants those too. HP wants to be involved, I take it.

When I was reviewing the old HP allegations, I came across some interesting tidbits I hadn't noticed at the time of the March 7, 2007 hearing in SCO v IBM. Brent Hatch told the court at that hearing that SCO was "well-funded". That is in addition to Stuart Singer denying that bankruptcy was imminent at another hearing, the one on January 23, 2007. Two representations, then, of sufficient funds to not end up in bankruptcy. Hatch said something else about those of you who attend the hearings. Unless I misunderstand what he said, I gather he thinks IBM pays you to attend. The context is that IBM had complained about some of the things Darl McBride had said to the media:

MR. HATCH: Your Honor, the only thing that was raised was tab 11, and I just would indicate this is just more of the same. The part that was underlined in mine that she's saying was so horrible that Mr. McBride said, it says: There is no doubt that our enemy -- that would be IBM, if anybody is not sure of that -- is well-funded and has deep pockets.

Now, anybody would be really hardpressed to stand here before me and tell me that that is not true, especially given our wonderful audience in the courtroom.

THE COURT: Some of the audience is yours, isn't it?

MR. HATCH: Yes, indeed, Your Honor. And I'm happy to have them say in public that we are well-funded as well. The point is: These are not actionable. They know it. These are brought to sidetrack the litigation, and the motion should be granted....

Now, based on that opportunity, SCO put together a licensing program for its libraries and approached Hewlitt Packard and other large companies to confirm whether it would be a good idea and they would find support in the industry. Not surprisingly, the program was well received and would give an opportunity to protect SCO's intellectual property and give them a profitable business while enhancing Linux by making more UNIX applications available because, without applications, an operating system isn't really worth much. Everyone wins in such a situation. There was only one company that balked. IBM.

So one can't help but wonder if Judge Kimball was influenced by these representations as to SCO's solvency and so didn't hurry to fund the constructive trust Novell asked for. If so, SCO is now reaping the benefit, as it gave SCO the window of opportunity to run to bankruptcy court and stay almost everything else. I think that kind of has to bite SCO on the ankle at some point. SCO can't hide in bankruptcy court forever.

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

ANNE MARIE KENNELLY (State Bar No. 55666)
HEWLETT-PACKARD COMPANY
[address, phone, fax]

Corporate Counsel for Hewlett-Packard Company

UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE

In re:

The SCO GROUP, INC., et al.,

Debtor(s).

Case No. 07-11337(KG)

(Jointly Administered)

NOTICE OF APPEARANCE AND
REQUEST FOR SPECIAL NOTICE

PLEASE TAKE NOTICE that, pursuant to Rule 9010 of the Federal Rules of Bankruptcy Procedure, Anne Kennelly, Corporate Counsel for Hewlett-Packard Company, hereby gives notice of appearance in this case on behalf of Hewlett-Packard Company ("Creditor").

PLEASE TAKE FURTHER NOTICE that, pursuant to Rules 2002, 3017 and 9007 of the Federal Rules of Bankruptcy Procedure and such other rules or statutes as may be applicable, Creditor hereby requests that (1) all notices given or required to be given in this case to creditors, any creditors' committee, or any other parties in interest, whether sent by the Court, the Debtor, any trustee, or any other party in this case and (2) any disclosure statements or plans of reorganization filed in this case, and any notice of hearing on such disclosure statements or plans of reorganization, be served on Creditor at the following address:

Anne Marie Kennelly
Corporate Counsel
Hewlett-Packard Company
[address, telephone, fax, email]

Dated: September 25, 2007

By: ____[signature]_____
Anne Marie Kennelly

Hewlett-Packard Company
[address, phone, fax, email]


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