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
About Hans Bayer - Updated 2Xs
Wednesday, July 29 2009 @ 02:59 AM EDT

Groklaw's reporters who attended the SCO bankruptcy hearing on the 27th reported that SCO portrayed Hans Bayer as not an officer of the company and not authorized to speak for SCO about the unXis deal. As a result, some emails by Bayer about the proposed sale to unXis were stricken from the record. I'll show you in a minute why SCO was so eager to have the emails stricken. They are very damaging. CEO Darl McBride said he'd even reprimanded Bayer for some emails he was not authorized to send. At one point, Cravath attorney David Marriott, representing IBM, pulled out his Blackberry and showed McBride the SCO website, listing Bayer as VP. But SCO's portrayal was that the web site was mistaken. When Steve Norris later testified, however, when he was asked who was the lead negotiator for SCO in the unXis deal, he said it was Hans Bayer. Norris had not been in the courtroom during McBride's testimony.

Who was correct? You will find Hans Bayer listed as an officer of SCO Group in the Walker Research Corporate Directory 2007. Right here [PDF], on page 25, where he's listed as a VP. That matches the web site. Here's a SCO press release, which includes a quotation from Hans Bayer, when SCO announced a deal with Sberbank in Russia, as well as a quote from Darl McBride, which tells me they both had to sign off on the press release:

"We are pleased that one of the largest banks in the world has decided to deploy SCO Open Server Release 6 to their branch offices. The increased performance that Open Server 6 brings together with its high compatibility has made this the best choice for modernizing the existing IT branch infrastructure," said Hans Bayer, vice president, worldwide sales for The SCO Group.
So, he wasn't just the head of the German subsidiary. He was also VP of Worldwide Sales for SCO Group. "We are pleased," he said, speaking for SCO.

Here's a screenshot from the Walker directory.

Here's how he's listed on the SCO web site page of executives and officers:

And here's a screenshot of the Sberbank press release:

SCOfolk are a trip and a half. Bayer's bio is still up on the website too:

Hans Bayer – Vice President Worldwide Sales

As Vice President of Worldwide Sales, Hans Bayer is responsible for overseeing all aspects of direct and channel sales of the company's UNIX and mobile products.

Bayer joined The Santa Cruz Operation in July 1992 as an Account Manager for Major Account Sales in Central Europe and has since then held various management positions within the company such as Managing Director and Country Manager Central Europe as well as Sales Manager for Corporate Sales and Marketing in Central Europe. After the acquisition by Caldera Inc. in June 2001 he was the Managing Director of the Caldera Development Center in Erlangen, Germany, until 2002.

Previous to working with The Santa Cruz Operation, Bayer worked at Digital Equipment Corp. as a Key Account Manager from 1989 until 1992. Prior to that he was a Product Manager at Wild Leitz from 1984 until 1989.

I remember Mr. Bayer as being prominent in the SCO story since at least 2003.

[Update: I see from this newsletter [PDF], "Unifying Unix and Linux for Business," that he was country manager for SCO Germany even back in 2001.]

It was he who announced that SCO Germany had resigned from a Linux group there, and this article in ComputerWorld identified him as "Hans Bayer, country manager and managing director at SCO Group GmbH" when quoting from the statement he'd released. When Tarent.de went to court against SCO in Germany, which resulted in a preliminary injunction against the company in 2003, Bayer was listed as the Managing Director in our translation of the legal document. He was the CEO, as we might say. If you read the legal document [PDF] from the case, it calls him the Geschäftsführer.

You don't call someone "führer" in Germany if you mean an underling, a mere employee, some "marketing guy", as McBride portrayed him.

If SCO didn't pay the fine, it was Hans Bayer who was threatened with jail it was reported:

Die SCO Group muss die 10.000 Euro jetzt an die Staatskasse zahlen, ansonsten droht Geschäftsführer Hans Bayer eine Ordnungshaft von 10 Tagen.
I think we'd call that authorized to represent the company. Later, he was replaced by Michael Olson as the Geschäftsführer, and then Jean Acheson, etc., in the skinnying down of employees, but he's no underling. Or at least, there's never been any such indication until the trial testimony.

Here's the part from our report by MikeD on that testimony about Bayer, for your comparison pleasure:

Marriott: Who were the primary negotiators for SCO?

McBride: Hunsaker, Tibbetts, Nielsen.

[MikeD Note - Here is where Mr. Marriott started reading emails from Hans Bayer. To summarize, Hans said that the mobility products being retained by SCO have no value to SCO; that Darl was holding onto a "weird dream" regarding the mobile apps; that Darl is spending millions of dollars on a product that nobody wants or needs; that the mobile apps and litigation is Darl's dream of hitting the jackpot; that employees are fed up with Darl and the litigation; that there only real product was Unix.

These were all emails from Hans. I believe they were written to Steve Norris. Mr. Marriott was selectively reading lines from the emails during questioning.

Mr. Marriott was so rapid-fire, I could not keep up. Summarizing, there was questioning of Darl about who Hans Bayer was and his position. Hans' title is VP of International Operations and Mobile Applications. There was much back and forth on this point. Mr. Marriott pointed out his title, which Darl disputed. Mr. Marriott pulled up the SCO Germany website on a Blackberry and handed it to Darl and asked him if it showed Hans as a VP - it did. Darl downplayed Hans position and authority. At this point, this line a questioning looked very damaging to Darl and SCO.

Mr. Spector had a continuing objection to this whole line of questioning. The emails made it sound like Hans was a key negotiator. Darl insisted he was just a marketing guy or something to that effect. To tie things together, Mr. Norris, who was not in the room, later said that Hans was one of the primary negotiators....

Spector: Who is Hans Bayer?

McBride: Sales guy in SCO Germany.

Spector: Is he an officer or Board member?

McBride: No.

Spector: Is he authorized to speak on behalf of SCO?

McBride: No.

Spector: Was he reprimanded for his comments in the emails?

McBride: Yes.

Spector: Who reprimanded him?

McBride: I did.

Spector: What was his reaction?

McBride: You'll have to ask him. [laughter in courtroom]

Mr. Spector tells Judge Hans feels Unix is the SCO product and is not qualified to speak on behalf of SCO. Hans does not know the whole story.

Mr. Spector asks Judge to strike all testimony about the Hans Bayer emails as hearsay. Arguments ensue. Judge speaks about speculation and role of Hans.

Judge agrees with SCO and strikes all testimony regarding the Hans Bayer emails.

Now you know why witnesses are sent out of the courtroom until it's their turn to take the stand. McBride's testimony was contradicted by Norris, who had not heard what McBride had said, because Norris had been waiting in another room.

The emails were stricken from the record, after the judge apparently accepted SCO's story that Bayer was not an officer and not authorized to speak, according to our reporters, and accepted that this made the emails hearsay, I gather. I think he made a mistake. SCO's attorney is reported to have said in his summation that listing Bayer as a VP on the website was a "simple mistake," speaking of mistakes. If so, it's been a mistake picked up by the world, including by SCO PR, since at least 2007. Perhaps the lawyer questioning SCO's McBride should have asked, "When did Mr. Bayer stop being an officer?"

[Update 2: There was another German litigation, settled on the terms in this agreement [PDF] between SCO Group Germany and Univention in 2004, whereby SCO agreed not to say certain things any more in that country. It's in German, of course, but you can still see Johannes Bayer, his full name, listed as the head of SCO Germany, Geschäftsführer, and Groklaw did a translation of the agreement's terms at the time. The point is that he wasn't just "some sales guy."]

Here is the press release about Sberbank in full, for historians, who, unlike Groklaw, may not have kept every scrap of evidence since 2003:

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

Sberbank (Savings Bank Of The Russian Federation) Chooses SCO's OpenServer 6 to Upgrade Thousands of Servers

Business Console, a SCO Premier Partner, Wins Bid to Begin Upgrades to Openserver 6 at Thousands of Branch Bank Offices Over 24 Months

LINDON, Utah, Aug. 30 /PRNewswire-FirstCall/ -- The SCO Group, Inc. ("SCO") (Nasdaq: SCOX), a leading provider of UNIX(R) software technology and mobile services, today announced that Business Console, a SCO Premier Partner, has been selected by Sberbank (Savings Bank of the Russian Federation) to upgrade more than three thousand branch offices to SCO's OpenServer 6 UNIX operating system. It is expected that the rollout upgrade will expand beyond the initial three thousand branch offices.

"Business Console is proud that we have been chosen as a long-term supplier of SCO software by Sberbank. It is a great conclusion to a project that started more than two years ago when SCO OpenServer 6 was released and presented by SCO to its partners and customers in Russia including Sberbank. OpenServer 6 advantages over OpenServer 5 are three-fold: it roughly doubles the performance of real-life bank applications on the same hardware, it's well-supported by leading server manufacturers and it saves money due to its more attractive pricing. Another important issue for a customer like Sberbank with its huge installation base is smooth migration," said Anatoly Belychook, president of Business Console. "As a SCO Premier Partner, we enjoy tight cooperation with the SCO team which is the key to prompt resolution of any customer issues. Solid local competence plus best in the industry online support services makes a customer confident about SCO as a platform of choice for backbone business applications," said Belychook.

Sberbank (Savings Bank of the Russian Federation) is the leader of the Russian banking industry, accounting for over a quarter of national banking assets and remains the largest bank in Russia and Central and Eastern Europe in terms of Tier I capital and assets.

"We are pleased that one of the largest banks in the world has decided to deploy SCO Open Server Release 6 to their branch offices. The increased performance that Open Server 6 brings together with its high compatibility has made this the best choice for modernizing the existing IT branch infrastructure," said Hans Bayer, vice president, worldwide sales for The SCO Group.

"SCO OpenServer is known for reliably running small-to-medium businesses and branch offices of companies throughout the world," said Darl McBride, president and CEO, The SCO Group. "We are pleased that Sberbank has chosen SCO OpenServer 6 to upgrade their branch offices throughout the country. OpenServer 6 will provide them with unparalleled reliability and security for their customers."

Availability and Pricing

For more information on SCO OpenServer 6, visit the product information pages on SCO's Web site at http://www.sco.com/products/openserver6/ or call 1-800-726-6561 in North America or +44 (0)1707 226014 outside the U.S.

About SCO

The SCO Group (Nasdaq: SCOX) is a leading provider of UNIX software technology and mobile services. SCO offers UnixWare for enterprise applications and SCO OpenServer for small to medium businesses. The SCO Mobile product line focuses on creating mobile platforms, services and solutions for businesses and enhances the productivity of mobile workers. SCO's highly innovative and reliable solutions help customers grow their businesses everyday, especially into the emerging mobile market. SCO owns the core UNIX operating system, originally developed by AT&T/Bell Labs and is the exclusive licensor to Unix-based system software providers. Headquartered in Lindon, Utah, SCO has a worldwide network of thousands of resellers and developers. SCO Global Services provides reliable localized support and services to partners and customers. For more information on SCO products and services, visit http://www.sco.com.

SCO and the associated logos are trademarks or registered trademarks of The SCO Group, Inc. in the U.S. and other countries. UNIX is a registered trademark of The Open Group.

SOURCE SCO Group, Inc.


  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 )