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
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

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


To read comments to this article, go here
Joint Statement Re Court's December 6, 2007 Order
Thursday, December 13 2007 @ 09:21 PM EST

Here it is, at last, the joint statement the Honorable Judge Dale Kimball requested the parties in SCO v. Novell file, Joint Statement Regarding Court's December 6, 2007 Order [PDF]. He had asked when they would be available for trial and whether the trial would be, in their estimation, any shorter. The answer to the latter is no. They still think it will be four days, because when they were ready for trial before, the issue of a constructive trust was going to be handled post-trial.

So when will it be? They say they are both free on the following dates: January 11-21 and January 31 to February 22, 2008. Here's the interesting part. Novell says that the Swiss arbitration is currently pencilled in to be heard April 16-25, 2008. So, evidently Swiss law is not altogether captive to US bankruptcy law, and so it has been scheduled for a hearing, but the footnote says it's holding the date open, I guess hoping this ball of wax will be taken care of by then, and indeed it looks like it will. SCO says the parties shouldn't assume that it will happen, because that matter was stayed. But in the footnote, we learn that Novell is thinking of going back to bankruptcy court, probably after the trial, I'm guessing, and, in light of lifting the stay on the Utah case, asking again to lift the stay on the Swiss arbitration. After all, if you want resolution, you can't really get it unless you finish both.

Judge Kimball also asked if any issues could be settled by summary judgment. No, says SCO. They have no plans. Like they could, even if they wanted to. And Novell says yes, they have a plan, to ask for summary judgment on Novell's 4th claim, "seeking a declaration that SCO was without authority to enter into the Sun, Microsoft, and other SCOsource licenses." It will file by December 21, but Novell sees no need to hold back scheduling the starting date for the 4-day trial.

I know. It's getting exciting now. Unless you are SCO. I hope some of you are synchronizing your calendars.

Just to remind us, here is Novell's 4th Claim:

FOURTH CLAIM FOR RELIEF
(Declaratory Relief: Rights and Duties under 4.16(b) of the Asset Purchase Agreement)

111. Novell incorporates by reference all prior paragraphs as if they were set forth here in full.

112. Under 4.16(b) of the APA, Novell has the right, at its sole discretion, to direct SCO to waive any rights under any SVRX Licenses. In the event that SCO fails to take any such action at Novell's direction, 4.16(b) gives Novell the right to take any action on SCO's own behalf. SCO refused to perform its corresponding duties under 4.16(b) and substantially and materially breached 4.16(b) by:

a. Purporting to cancel or terminate SVRX licenses, including the IBM and Sequent SVRX licenses, and then refusing to waive these purported rights as directed by Novell; and

b. Refusing to recognize actions taken by Novell on SCO's behalf pursuant to 4.16(b), including Novell's waiver of SCO's purported claims against IBM and Sequent.

113. Novell seeks a declaration pursuant to 28 U.S.C. 2201 that:

a. Under 4.16(b) of the APA, Novell is entitled, at its sole discretion, to direct SCO to waive its purported claims against IBM, Sequent and other SVRX licensees; and

b. Under 4.16(b) of the APA, Novell is entitled to waive on SCO's behalf SCO's purported claims against IBM, Sequent and other SVRX licensees, when SCO refuses to act as directed by Novell; and

c. SCO is obligated to recognize Novell's waiver of SCO's purported claims against IBM and Sequent.

114. Under 4.16(b) of the APA, SCO is obligated to seek Novell's prior approval to enter into new SVRX Licenses or amendments of SVRX Licenses, subject to limited exception. SCO did not perform its corresponding duties under 4.16(b) and substantially and materially breached 4.16(b) by:

a. Purporting to enter into new SVRX licenses without Novell's prior approval, including agreements with Sun, Microsoft and other licensees of SCO's Intellectual Property Licenses, without demonstrating that either of two limited exceptions was applicable; and

b. Purporting to enter into amendments of SVRX Licenses without Novell's prior approval, including agreements with Sun, Microsoft and other licensees of SCO's Intellectual Property Licenses, without demonstrating that a limited exception was applicable.

115. Novell seeks a declaration pursuant to 28 U.S.C. 2201 that:

a. Under 4.16(b) of the APA, SCO was obligated to seek Novell's prior approval to enter into new SVRX licenses or amendments to SVRX licenses, including SCO's agreements with Sun, Microsoft and other licensees of SCO's Intellectual Property Licenses; and

b. Under 4.16(b) of the APA, SCO is obligated to seek Novell's prior approval to enter into new SVRX licenses or amendments to SVRX licenses, unless SCO can demonstrate to Novell that any exceptions to the prohibitions against new licenses and amendments by SCO are applicable.

116. Novell pleads in the alternative for a declaration pursuant to 28 U.S.C. 2201 that SCO had no authority to enter into the Sun and Microsoft SVRX Licenses, as well as the Intellectual Property Licenses with Linux end users and UNIX vendors.

Now, Novell brought a motion for partial summary judgment on that 4th claim in December of 2006, so they must believe that they have additional arguments that they can now make. Here's the Memorandum in Support, Redacted Declaration in Support by Kenneth Brakebill. SCO's Opposition was sealed but there was a redacted version, and so was Novell's Reply. But SCO filed a Cross Motion on this 4th claim, if you recall. Novell's Opposition was filed under seal, and so was SCO's reply, but there is a redacted version. Novell also filed evidentiary objections regarding SCO's witness testimony "based on five grounds: inadmissable parol evidence, lack of personal knowledge, hearsay, the best evidence rule, and improper authentication". If you read some opining that the judge ignored SCO's witnesses, you'll find that document helpful. Then there was another declaration by Kenneth Brakebill, also sealed. There was a hearing in June of 2007.

Here's the funny detail. Novell won its motion and SCO's cross motion was denied. So to figure out what Novell might ask for next in summary judgment, you need to carefully analyze the August 10th Order. They see something that I haven't, which is hardly surprising, given that they are lawyers and I am not and also given that so many documents were sealed.

But I have an argument I'd make regarding the arbitration, that it'd be good to go forward while everyone there still has it fresh in mind. Trying to reconstruct all that happened just on Novell's Fourth Claim for Relief reminded me of things I'd already forgotten. Meanwhile, lawyers have retired, moved on, whatever. And even this document, by its style in the PDF, is new, so support staff seems to have changed too. So how about we get this resolved while all the people who put forth a tremendous effort to focus on all the details are still alive and on the case? Maybe it'd be good to finish up before SCO spends every last Novell farthing on lawyers to sue Novell with, too. You know, in the interests of justice. And all that.

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

MORRISON & FOERSTER LLP
Michael A. Jacobs, pro hac vice
Eric M. Acker, pro hac vice
David E. Melaugh, pro hac vice
[address]
[phone]
[fax]

ANDERSON & KARRENBERG
Thomas R. Karrenberg, #3726
Heather M. Sneddon, #9520
[address]
[phone]
[fax]

Attorneys for Defendant & Counterclaim-Plaintiff Novell, Inc.

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

THE SCO GROUP, INC., a Delaware corporation,
Plaintiff and Counterclaim- Defendant,

v.

NOVELL, INC., a Delaware corporation,
Defendant and Counterclaim- Plaintiff.
JOINT STATEMENT REGARDING
COURT'S DECEMBER 6, 2007
ORDER



Case No. 2:04CV00139

Judge Dale A. Kimball

1

Pursuant to the Court's December 6, 2007 Order, Defendant and Counterclaim-Plaintiff Novell, Inc. ("Novell"), by and through its counsel, and Plaintiff and Counterclaim-Defendant The SCO Group, Inc. ("SCO"), by and through its counsel, make the following joint statement:

Motions for Summary Judgment

Novell anticipates filing a motion for summary judgment on its Fourth Claim for Relief, seeking a declaration that SCO was without authority to enter into the Sun, Microsoft, and other SCOsource licenses. Novell will be prepared to file this motion by December 21, 2007. Both parties agree that the trial need not be deferred pending a ruling on the motion for summary judgment.

SCO does not anticipate filing a motion for summary judgment. SCO does not believe the subject matter of Novell's proposed motion can properly be resolved on summary judgment, as the issue involves the question of whether any SVRX license aspects of these licenses were "incidental" to non-SVRX license aspects, which is closely tied to the issues that this Court will be trying on apportionment of licensing income.

Trial Length and Schedule

The parties anticipate that trial will last four days. Because the parties had agreed to address the issue of any constructive trust in post-trial briefing, the bankruptcy court's decision to reserve that issue for itself is not expected to reduce the trial length.

The parties agree they are available for trial January 11-21 and January 31 to February 22, 2008. Novell has not proposed the second half of April for trial, because the SUSE arbitration is presently scheduled for hearing in Zurich April 16-25, 2008. SCO proposes to make April available for trial because that arbitration has been held to be subject to the automatic stay in bankruptcy and the parties should not assume that the stay will be lifted.1 One of SCO's

2

lead counsel has conflicts for the month of March (a four-week trial in federal court in Kentucky) and May (arbitration in Florida, followed by a one-week trial in Wisconsin). Novell's lead counsel has a conflict for the first half of June (trial in federal court in Delaware).

DATED: December 13, 2007

ANDERSON & KARRENBERG

/s/ Heather M. Sneddon
Thomas R. Karrenberg
Heather M. Sneddon
Attorneys for Novell, Inc.

DATED: December 13, 2007

HATCH, JAMES & DODGE

/s/ Brent O. Hatch
(Signed by filing attorney with the consent
of Brent O. Hatch)
Brent O. Hatch
Mark F. James
Attorneys for The SCO Group, Inc.

3

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 13th day of December, 2007, I caused a true and correct copy of the foregoing JOINT STATEMENT REGARDING COURT'S DECEMBER 6, 2007 ORDER to be served to the following:

Via CM/ECF:

Brent O. Hatch
Mark F. James
HATCH JAMES & DODGE, P.C.
[address]

Stuart H. Singer
William T. Dzurilla
Sashi Bach Boruchow
BOIES, SCHILLER & FLEXNER LLP
[address]

David Boies
Edward J. Normand
BOIES, SCHILLER & FLEXNER LLP
[address]

Devan V. Padmanabhan
John J. Brogan
DORSEY & WHITNEY, LLP
[address]

Via U.S. Mail, postage prepaid:

Stephen Neal Zack
BOIES, SCHILLER & FLEXNER LLP
[address]

/s/ Heather M. Sneddon

4

1According to Novell, in light of the bankruptcy court's decision to lift the stay over this litigation, SUSE is evaluating whether to make a similar motion regarding the arbitration. In the meantime, the arbitration tribunal is holding open an April hearing date.

  View Printable Version


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 )