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Minutes from the October 23, 2009 SCO Bankruptcy Hearing
Saturday, October 24 2009 @ 01:01 PM EDT

A very small group met in the courthouse Friday in the SCO bankruptcy. The two motions filed by the Chapter 11 Trustee, Edward Cahn, were approved, so Tanner and Ocean Park Advisors will be on the job for Cahn. Here are the minutes [PDF].

Here are the filings:

10/23/2009 - 937 - Minutes of Hearing held on: 10/23/2009 Subject: OMNIBUS HEARING. (vCal Hearing ID (97406)). (related document(s) 931 ) (SS) Additional attachment(s) added on 10/23/2009 (SS). (Entered: 10/23/2009)

10/23/2009 - 938 - Order Approving Expansion of the Scope of Employment of Tanner LC as Accountants to the Debtors Nunc Pro Tunc to September 14, 2009 (related document(s) 917 ) Order Signed on 10/23/2009. (TAS) (Entered: 10/23/2009)

10/23/2009 - 939 - Order Granting Chapter 11 Trustee's Application for Authority to Retain and Employ Ocean Park Advisors LLC as Financial Advisor and Investment Banker Nunc Pro Tunc to September 15, 2009 (related document(s) 923 ) Order Signed on 10/23/2009. (TAS) (Entered: 10/23/2009)

The attachment to the minutes is a list of the attendees. Bonnie Glantz Fatell, of Blank Rome, representing the Chapter 11 Trustee, Edward Cahn, and Mr. Cahn, and Justin Rucki of Young Conaway Stargatt & Taylor LLP for Novell were the only lawyers there today. And Al Petrofsky was on the phone.

I don't recall seeing Mr. Rucki before, so I've added him to our Cast of Characters page. He is a bankruptcy specialist, in fact a specialist within the specialty:

Justin focuses his practice on issues relating to debtors, secured and unsecured creditors, and creditors' committees in chapter 11 cases.

Prior to joining the firm in 2009, Justin served as judicial law clerk to the Honorable Brendan Linehan Shannon, Judge of the United States Bankruptcy Court for the District of Delaware. During his clerkship he worked on numerous chapter 11 "mega-cases," including those of energy companies SemCrude, L.P. and VeraSun Energy Corp., manufacturers Fedders North America, Inc. and Motor Coach Industries, and a number of large cases originating in various other business sectors.

He earned his juris doctor from William & Mary's Marshall-Wythe School of Law in Williamsburg, Virginia. While in law school, Justin served on the Articles Selection Committee of the William & Mary Law Review and worked as a research assistant for Professor Peter A. Alces of the law school and Professor Ned W. Waxman of William & Mary's Mason School of Business. He earned his bachelor of science degree in Economics and Political Science from The Florida State University in Tallahassee, Florida, where he was editor-in-chief of the FSView & Florida Flambeau, the sixth-highest circulated college newspaper in the nation.

But no fireworks from any creditors today, I guess. IBM didn't feel it needed to send anyone, I see. So that's the smallest gathering yet, and that tells us to stay tuned. This isn't the hearing that matters, despite it being Mr. Cahn's debut as far as it being scheduled as his preliminary report on the estates, his first hearing since his appointment. There will be more to come. Much more, I have no doubt, judging from the Darl McBride letter to Mr. Cahn.

According to the Salt Lake Tribune's account, Cahn told the judge he'll pursue the Novell and IBM litigation, but that's not really news. He announced as much the other day, and again in the motion regarding the AutoZone proposed settlement, it was hinted at, and what choice does he have at this point? Boies Schiller are paid, and what basis would he have to say it isn't worth even trying, when copyrights are in the balance? The jury trial would naturally seem worthwhile to pursue, since what costs a lot in litigation is discovery, and that's over and done. If he didn't pursue that, he would surely open himself up to litigation by the shareholders McBride claims to be leading. And that costs money to pursue also, so all in all, it's the course of caution to pursue things at this point, or at least to talk like you plan to.

And what the report indicates to me, seeping out between the lines, is that, unlike AutoZone, who never really had a dog in this race, neither Novell nor IBM has been willing to settle out their cases with SCO. Perhaps the bankruptcy judge will try to force some kind of arbitration or settlement, but for sure, they are not interested or Cahn wouldn't be saying he's decided to pursue the litigation. He'd be announcing settlement agreements instead, and that didn't happen today.


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