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Berger Singerman's 22nd bill in the SCO bankruptcy
Thursday, August 20 2009 @ 12:14 PM EDT

Berger Singerman has filed its 22nd bill in the SCO bankruptcy. $163,159.79. Total now due: $214,063.54.

Frankly, they were worth every penny. I don't admire that style of lawyering, personally, but no fair observer can say they didn't do what they were hired to do. They did. This bill, to me, screams, "What we said at the hearings was true. See? Here's the proof." Exhibit A, the break down, is 29 pages. A lot more detail than usual. Of course, that could be because they know the court has appointed a Chapter 11 trustee to take over from oldSCO management, and the bill has to pass under his nose in all likelihood.

Here's the docket:

08/19/2009 - 896 - Monthly Application for Compensation [Twenty-Second] and Reimbursement of Expenses as Co-Counsel to the Debtors in Possession for the Period from June 1, 2009 Through June 30, 2009 Filed by Berger Singerman, P.A.. Objections due by 9/8/2009. (Attachments: # 1 Notice # 2 Exhibit A # 3 Certificate of Service and Service List) (O'Neill, James) (Entered: 08/19/2009)

And, no offense, but with all the dancing we've seen, I don't take anything I see here in this bill as being precisely anything but PR. Normally, the bills are laconic, but after questions have been raised about the deal(s) and the timing of everything, I see long entries with more detail than usual, and without looking at the original evidence, how would one know if any of this is so? I certainly can't know, so we'll accept them as accurate, unless we notice clear contradictions.

On page 7, you see Arthur Spector attending two board meetings by telephone, one on June 1 and then again on June 11. Remember the testimony about that? On the next page is an entry I don't understand. Perhaps some of you will. It lists a payment of $809 regarding "Meeting of Creditors/Committees." What would that be?

I'll show you an example of a long-winded entry that doesn't seem the usual style. On page 9, for June 2nd, that reads "Confer, Memos, Coordinate regarding Board call, call with deal partner, follow up and discuss issues, etc.; confer, memos regarding disclosure schedules." In the usual style that I think I recall, it'd be more like "conference, memos with client re schedules, PSA" or something equally hard to parse.

But this bill is nothing if not loquacious, chronicling things that were testified to at trial. Here's something interesting, on that same page, for June 4:

Emails regarding new investor/litigation share deal. Draft and revise term sheet and discuss with R. Tibbitts and K. Nielsen's. Review K. Nielsen's input regarding insider/director investment deal term sheet; address distinction between Boies Schiller contingency entitlements and insider returns, relative to fairness to company. Conference with Proskauer and A. Spector Earl term sheet and review revised Earl term sheets. Email comments
See what I mean? No, I have no idea what "Earl term sheet" means or later on that page "Hank deal term sheet" or "insider term sheet". But there is a lot of wording about deals other than the unXis deal, carefully detailing that there were other deals considered. On the face of it, this bill says there were. On the 10th, it begins "Continued work on four alternative transactions..." OK. We get it. Four. Matches the testimony exactly.

Hmm. This is fascinating. On June 7, there is an entry about Xenix:

Review Xenix/Norris issues; email reflecting comments and responses; conference call with P. Antoszyk, team (Proskauer) and A. Spector; follow up with A. Spector; revise memo to employees
I'd certainly love to see those emails. What Xenix issues would require conferences and memos to employees? Perhaps the cure amount SCO listed as being $44,395 allegedly due Microsoft for Xenix code in "old SVRX" in UnixWare and OpenServer? I've never seen an explanation of that figure. But it's moot now, for the moment anyway, as the unXis deal was not approved by the court. Then on the 8th:
Conference calls among SCO team regarding various proposed deals, merits, strengths and negatives. Discuss Gagnon and Xenix/Norris, and proposals regarding director investments. Refine term sheet and discuss securities and organizational issues and methods. Work on designation, work on insert for Xenix APA and discuss with Bryan Cave.
These entries reflect work by FHC, who I assume to be Franklin H. Caplan, the lawyer who testified at the hearing on June 15, if you recall, about what a busy bee he was, juggling all the deals in the air. A lot of the bill is his time. There is mentioned also "GCP and Hank deals" on June 10, followed by a teleconference with Darl re "competing offers". On June 11, it mentions "Ryan and possibly Ryan's and Hank's combination". This is the bill that reflects Caplan's testimony, in other words. Perfectly.

On June 14, it mentions a Bryan Cave draft PSA. I thought the judge seemed a bit hard on unXis about the sales deal in his recent order, since I thought it was a SCO work product. But I guess not. The draft came from Bryan Cave, and then SCO revised. On page 12, Berger Singerman did legal research "regarding asset sales, highest and best offers, and business judgment rule." I wonder if they told the client that on the basis of that research, they were doomed, that the judge would never go for that deal? Even if they did, would SCO listen? But then again, does a law firm have to do what the client wants? Always? Or is there a time when the lawyer's responsibility to the client is to present the likely realities? So much time and money to try to avoid Chapter 7. So, another $163,000 that Novell will never see. SCO is spending Novell's money, as I compute it, to figure out ways to avoid letting them have what is theirs, according to the Utah District Court order.

An item on page 20 indicated a "sixth quarterly fee application" from BSPA. I wonder how Boies Schiller will go down in history, with the gestank of SCO on them forever and ever? The firm is in this up to its eyeballs. On page 27, for example, you see a notation, "Incorporate suggestions from S. Singer into opening." That was prep for the June 15th hearing.

Wait. What's this? On June 29, which is before the disastrous July 27th hearing, there is this notation: "Emails regarding Hank investment. Begin drafting." And on the 30th, "Work on Hank II." Lordy. Not a Hank II. Please. On page 19, it lists "Review correspondence from R. Tibbitts regarding new interest in financing possibilities."

They never give up, these SCOfolk. Absolutely never.

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