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Another Lawyer Moves On & a SCO/Novell Status Chart from August
Wednesday, December 12 2007 @ 02:55 AM EST

Tomorrow is the deadline for the parties in SCO v. Novell to file their joint statement in Utah, informing the judge of what they think the effects are of the bankruptcy lift stay order. And I gather, in reviewing the file, someone on the Novell side noticed that one lawyer who worked on the case back in 2004 isn't involved now, so there is a motion to withdraw John Mullen, one of the Anderson & Karrenberg attorneys:
474 - Filed & Entered: 12/11/2007
Motion to Withdraw as Attorney
Docket Text: MOTION to Withdraw as Attorney filed by Defendant Novell, Inc.. (Attachments: # (1) Text of Proposed Order) Motions referred to Brooke C. Wells.(Mullen, John)

475 Filed & Entered: 12/11/2007
Memorandum in Support of Motion
Docket Text: MEMORANDUM in Support re [474] MOTION to Withdraw as Attorney filed by Defendant Novell, Inc.. (Mullen, John)

The firm is still representing Novell, of course, as are all the Morrison & Foerster warriors.

[Update: The Order [PDF] has now been signed, as of the 12th.]

We first saw Mr. Mullen's name on a filing in 2004, listed as one of the Anderson & Karrenberg attorneys representing Novell. He was in attendance at the May 2004 hearing on a couple of motions in SCO v. Novell but Michael Jacobs of Morrison & Foerster did the talking that day for Novell. I gather his role was behind the scenes. The motion says that he is now of counsel and that he isn't currently doing any work on this case. So that's all this means. Just tidying up the file.

This case has gone on for so many years, we could have a page for announcements. You know, marriages, births, divorces, retirements, various life events. We could call it the SCO Follies. No, wait. That's taken. But in all seriousness, it is a little like a family after all this time, and it always feels funny when one of the lawyers moves on, as has happened a few times now since it all began. Doesn't Mr. Mullen have a great face? Still, life moves on, so we'll say goodbye to him and wish him well. I'll go put a line through his name on Groklaw's Cast of Characters page now.

Groklaw's still here. Can you believe it? It's almost 2008, and we're still ticking. Who'd ever have imagined in 2003 that we'd still be together after all these years? And you know what? It's still so much fun.

I've been reviewing the SCO v. Novell filings too, so I can be ready to roll when the trial begins. I thought you might like to be reminded of the last time the Utah lovebirds filed a joint statement. It was in August, and Judge Dale Kimball asked the parties to file a statement letting him know what they thought was left in the case to go to trial after his August 10th Memorandum Decision and Order. Of course, they didn't agree. But here is what they were able to file together at least. I would guess they are using this now as a template and then analyzing what, if anything, gets removed from the list, since the Bankruptcy Court in Delaware will be handling the post-trial issue of a constructive trust. Right after they filed the joint report, Groklaw's feldegast did a chart for us, but then we all danced over to Delaware, and so I never ran it. Now's the time, I'd say, because it will help us a lot to understand whatever the new joint statement lists.

If you go to the Novell Timeline page, you'll see a lot happened between the day this status report was filed, on August 29, and the day SCO hopped like a bunny over to Delaware and filed for Chapter 11 bankruptcy protection on September 14th. The parties fought about jury instructions, over what evidence each could present at trial, who could testify, whether SCO could invent new arguments regarding SCOsource licenses, and SCO filed a motion for reconsideration or clarification of the August 10th order, which was for naught. It was denied with the memorable phrase, "no clarification is necessary". The court said that SCO's motions and briefs made clear they understood him perfectly. SCO wanted Groklaw to be unmentionable before the jury. But then the court decided there would be no jury anyhow, at which point, the handwriting was on the wall and SCO ran screaming for bankruptcy protection.

But the chart, despite all that happened, still reflects the overview of what the parties thought remained for trial, a trial SCO managed to postpone but not escape.

* * *

SCO's Claims for Relief

Claim Decided For Trial/Pending
SCO's Slander of Title All None
SCO's Breach of the APA and TLA

The parties agree this claim is dismissed to the extent it concerns the UNIX and UnixWare copyrights the Court has held were retained by Novell, and to the extent it concerns Novell's waiver of claims asserted against IBM and Sequent.

The parties agree that the Court did not dismiss any alleged portion of the claim concerning technology other than the UNIX and UnixWare copyrights the Court has held were retained by Novell. The parties disagree as to whether SCO has pled or can pursue such a claim, but agree that any such portion is stayed by the Court's August 21, 2006 Order pending resolution of the SuSE arbitration. No aspect of this claim will be tried during the September 2007 trial.

SCO's Alternative Breach-of-Contract Claim Seeking Specific Performance The parties agree this claim is dismissed in its entirety. None
SCO's Copyright Infringement Claim The parties agree that this claim is stayed by the Court's August 21, 2006 Order pending resolution of the SuSE arbitration. Stayed pending resolution of the SuSE arbitration.
SCO's Unfair Competition The parties agree this claim is dismissed to the extent it concerns the UNIX and UnixWare copyrights the Court has held were retained by Novell, and to the extent it concerns Novell's waiver of claims asserted against IBM (including Sequent). The parties agree that the Court did not dismiss any alleged portion of the claim concerning technology other than the UNIX and UnixWare copyrights the Court has held were retained by Novell. The parties disagree as to whether SCO has pled or can pursue such a claim, but agree that any such portion is stayed by the Court's August 21, 2006 Order pending resolution of the SuSE arbitration. No aspect of this claim will be tried during the September 2007 trial. No aspect of this claim will be tried during the September 2007 trial.

So that's what is left of SCO's claims after the August 10th ruling. Not so much. Here's what the parties thought remained of Novell's claims to be tried:

Novell's Claims for Relief

Claim Decided For Trial/Pending
Novell's Slander of Title The parties agree that Novell shall dismiss this claim without prejudice to renewing it should there be any subsequent adjudication or trial of copyright ownership-related issues. The parties will incorporate this agreement into the proposed final judgment. Claim can be renewed.
Novell's Breach of Contract - 1.2(b) and 1.2(f) of the Asset Purchase Agreement None Novell presently intends to pursue this claim at trial. SCO reserves the right to argue this Count is resolved by the Court's ruling.
Novell's Breach of Contract - 1.2(b) and 4.16(a) of the Asset Purchase Agreement The parties agree that the Court's Order finds SCO liable for breach of the APA as to the Sun and Microsoft licenses, leaving only the proper apportionment of the Sun and Microsoft royalties for trial. Novell also contended that SCO breached the APA by failing to remit certain miscellaneous SVRX Royalties over the history of SCO's administration of SVRX licenses. As these royalties constitute only a small portion of the recovery sought and as seeking these royalties would add considerably to the complexity of the trial, Novell does not intend to pursue, under any claim, the royalties reflected on Exhibits 6, 7, and 8 of Terry Musika's Supplemental Expert Report on Damages or the associated prejudgment interest.

The proper apportionment of the Sun and Microsoft royalties, and SCO reserves the right to argue by motion that to the extent SCO licensed SVRX only incidentally to a UnixWare license in the Sun and Microsoft licenses (or any other licenses), SCO did not breach the APA and Novell is not entitled to any apportionment of the Sun and Microsoft royalties (or royalties from other licenses). Novell believes that such an argument is foreclosed by the Court's Order. The trial will also address whether SCO breached the APA by failing to remit SVRX Royalties from SCO's remaining SCOsource licenses and the amount of those royalties that should be apportioned to Novell.

Novell's Declaratory Relief - Rights and Duties Under 4.16(b) of the Asset Purchase Agreement, B of Amendment No. 2

The parties agree that the Court's Order establishes that Novell is entitled to direct SCO to waive claims against IBM, Sequent, and other SVRX licensees; that Novell is entitled to waive such claims on SCO's behalf; and that SCO is obligated to recognize such a waiver.

Novell will seek a declaration that SCO was also obligated to seek Novell's approval prior to entering into new SVRX licenses or amendments to SVRX licenses and that SCO therefore had no authority to enter into the Microsoft, Sun, and other SCOsource licenses.

Novell will seek a declaration that SCO was also obligated to seek Novell's approval prior to entering into new SVRX licenses or amendments to SVRX licenses and that SCO therefore had no authority to enter into the Microsoft, Sun, and other SCOsource licenses. SCO reserves the right to argue by motion that to the extent SCO licensed SVRX only incidentally to UnixWare in the Sun and Microsoft licenses (or any other licenses), SCO was not obligated to seek Novell's approval prior to entering into any such licenses. Novell believes that such an argument is foreclosed by the Court's Order.

Novell's Declaratory Relief - Rights and Obligations Under APA's Covenant of Good Faith and Fair Dealing None Novell intends to pursue this claim at trial. SCO reserves the right to argue this Count is moot in light of the Court's ruling.
Novell's Constructive Trust/Restitution/Unjust Enrichment Novell contends that the Court's Order resolves any question as to SCO's liability for unjust enrichment as to the Sun and Microsoft licenses, leaving only the proper apportionment of the Sun and Microsoft royalties for trial.

SCO reserves the right to argue by motion that to the extent SCO licensed SVRX only incidentally to UnixWare in the Sun and Microsoft licenses (or any other licenses), SCO did not breach the APA and Novell is not entitled to any apportionment of the Sun and Microsoft royalties (or royalties for any other licenses). Novell believes that such an argument is foreclosed by the Court's Order. The trial will also address whether SCO unjustly enriched itself by retaining SVRX Royalties from SCO's remaining SCOsource licenses and the amount of those royalties that should be apportioned to Novell.

Novell's Breach of Fiduciary Duty Novell contends that the Court's Order resolves any question as to SCO's liability for its breach of fiduciary duties as to the Sun and Microsoft licenses...

... leaving only the proper apportionment of the Sun and Microsoft royalties for trial. SCO reserves the right to argue by motion that to the extent SCO licensed SVRX only incidentally to UnixWare in the Sun and Microsoft licenses (or any other licenses), SCO did not breach the APA and Novell is not entitled to any apportionment of the Sun and Microsoft royalties (or royalties from any other licenses). Novell believes that such an argument is foreclosed by the Court's Order. The trial will also address: whether SCO breached its fiduciary duties by retaining SVRX Royalties from SCO's remaining SCOsource licenses; the amount of those royalties that should be apportioned to Novell; whether SCO breached its fiduciary duty by failing to comply with the audit provisions of the APA; and whether that breach is a further reason why any questions as to royalty apportionment should be decided against SCO. SCO reserves the right to argue that these issues are moot by the Court's ruling, that the only issues to be tried should be the apportionment of royalties between SVRX royalties and non-SVRX royalties, including whether the SVRX aspect of licenses are incidental to SCO's licensing of UnixWare such that no royalties are due at all.

Novell's Conversion Claim Novell contends that the Court's Order resolves any question as to SCO's liability for its conversion of Sun and Microsoft license royalties....

...leaving only the proper apportionment of the Sun and Microsoft royalties for trial. SCO reserves the right to argue by motion that to the extent SCO licensed SVRX only incidentally to Novell in the Sun and Microsoft licenses (or any other licenses), SCO did not breach the APA and Novell is not entitled to any apportionment of the Sun and Microsoft royalties (or royalties for any other licenses). Novell believes that such an argument is foreclosed by the Court's Order. The trial will also address whether SCO converted SVRX Royalties from SCO's remaining SCOsource licenses and the amount of those royalties that should be apportioned to Novell.

Novell's Accounting Claim

The parties agree that the Court's Order moots this claim. No aspect of this claim will be tried during the parties' September 2007 trial. Further, the parties have agreed that Novell will not pursue punitive damages under any claim, without prejudice to seeking such relief should there be any subsequent adjudication or trial in this action or any enlargement of the issues for this trial beyond that contemplated by this report. The parties will incorporate this agreement into the proposed final judgment.

None at this time


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