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To read comments to this article, go here
SUSE Moves to Lift Stay on Arbitration; Novell Asks to Consolidate with IBM Litigation or Have Both Cases Assigned to That Judge
Tuesday, November 10 2009 @ 05:42 PM EST

Novell has made two moves. In bankruptcy court, SUSE asks that the stay be lifted so the arbitration can go forward. And in Utah, Novell has filed a Notice of Related Proceeding, asking that the SCO v. Novell and SCO v. IBM litigations either be consolidated with SCO v. IBM or at least be assigned to the same judge, Tena Campbell.

Updated with further filings, including the transcript of the October 23, 2009 bankruptcy hearing.

After all, SUSE points out, if the Chapter 11 trustee imagines that the litigation has value, then why not actually settle the significant point raised in the arbitration, namely that SCO has no right to even raise copyright infringement claims against SUSE, Novell or its customers? It would also affect litigation against others, like IBM. Until the arbitration is decided, no one knows what SCO's claims are worth.

Well. I do, but SCO won't accept my assessment.

: D

Also, SUSE tells the judge in the bankruptcy court, the Arbitration Panel has expressed concern that the case has been on ice for two years now:

Completing the Arbitration will impose only a modest incremental burden on SCO, because the Arbitration was on the eve of a merits hearing on liability when it was suspended two years ago. In contrast, continuing the stay of the Arbitration would prejudice SUSE as the uncertainty created by SCO's threats would remain. Moreover, the Arbitral Tribunal recently expressed concern about the long delay, stating that unless there are new developments soon, the members of the Tribunal may be forced to consider their position and the future conduct of the proceedings. It is not clear what steps might be taken by the Tribunal, but it is clear that the stay should be lifted so that the Arbitration can proceed.
And as for Utah, Novell argues that the two cases are about many of the same issues, so it makes sense to have to educate only one judge from the starting point, not two.

Here are the bankruptcy filings:

11/10/2009 - 951 - Motion for Relief from Stay To Complete International Arbitration. Fee Amount $150. Filed by Novell, Inc., SUSE Linux GmbH. Hearing scheduled for 12/22/2009 at 02:00 PM at US Bankruptcy Court, 824 Market St., 6th Fl., Courtroom #3, Wilmington, Delaware. Objections due by 11/30/2009. (Attachments: # 1 Notice # 2 Proposed Form of Order) (Greecher, Sean) (Entered: 11/10/2009)

11/10/2009 - 952 - Declaration in Support By Grant L. Kim In Support of Suse's Motion For Relief From The Automatic Stay To Complete International Arbitration (related document(s) 951 ) Filed by Novell, Inc., SUSE Linux GmbH. (Attachments: # 1 Exhibit A # 2 Exhibit B # 3 Exhibit C # 4 Exhibit D # 5 Exhibit E # 6 Exhibit F # 7 Exhibit G) (Greecher, Sean) (Entered: 11/10/2009)

And here is the filing in Utah to consolidate or have both cases assigned to the same judge:

11/10/2009 - 600 - NOTICE of Related Proceeding by Novell, Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (Sneddon, Heather) (Entered: 11/10/2009)

Update: More bankruptcy filings:

11/10/2009 - 953 - Declaration in Support By Adam A. Lewis in Support of Suse's Motion For Motion for Relief from Automatic Stay To Complete International Arbitration (related document(s) 951 ) Filed by Novell, Inc., SUSE Linux GmbH. (Attachments: # 1 Exhibit A # 2 Exhibit B # 3 Exhibit C) (Greecher, Sean) (Entered: 11/10/2009)

11/10/2009 - 954 - Motion to File Under Seal Exhibits to Declaration of Grant L. Kim (related document(s) 952 ) Filed by Novell, Inc., SUSE Linux GmbH. Hearing scheduled for 12/22/2009 at 02:00 PM at US Bankruptcy Court, 824 Market St., 6th Fl., Courtroom #3, Wilmington, Delaware. Objections due by 11/30/2009. (Attachments: # 1 Notice # 2 Proposed Form of Order) (Greecher, Sean) (Entered: 11/10/2009)

11/10/2009 - 955 - Receipt of filing fee for Motion for Relief From Stay (B)(07-11337-KG) [motion,mrlfsty] ( 150.00). Receipt Number 4263234, amount $ 150.00. (U.S. Treasury) (Entered: 11/10/2009)

11/11/2009 - 956 - Affidavit/Declaration of Service Regarding Motion for Relief From Automatic Stay to Complete International Arbitration; Declaration of Grant L. Kim; Declaration of Adam A. Lewis; and Motion to File Under Seal Exhibits of Grant L. Kim Declaration (related document(s) 951 , 952 , 953 , 954 ) Filed by Novell, Inc., SUSE Linux GmbH. (Greecher, Sean) (Entered: 11/11/2009)

11/11/2009 - 957 - Certificate of Service Fifth Quarterly Application for Compensation for the Period December 1, 2008 through April 30, 2009; and Thirteenth Monthly Application for Compensation for the Period May 1, 2009 through July 31, 2009 Filed by Dorsey & Whitney LLP. (Schnabel, Eric) (Entered: 11/11/2009)

Note that Exhibit C to #953 is the transcript of the October 23, 2009 hearing, so we don't have to wait as long as we thought we would for the transcript.

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