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The U.S. Trustee's Office's Objections to Sealing the AutoZone Agreement
Thursday, December 03 2009 @ 02:22 PM EST

This is interesting. We get to learn now what it was the U.S. Trustee's Office's representative, Joseph McMahon, was fighting for when he objected to the complete sealing of the AutoZone-SCO settlement agreement. He objected to the parties being allowed to block all public access to any discussion about it at hearings, and he objected to them being able to redact all transcripts of any discussions about the settlement. The settlement agreement itself remains sealed.

Remember at the last SCO bankruptcy hearing, the one mostly about Wayne Gray, it ended with the AutoZone sealing conflict unresolved when time ran out, and Cahn's lawyer Bonnie Glantz Fatell said she'd continue to discuss the issue with Mr. McMahon and file the agreement under seal and the judge could sign it on certification of counsel? She has now filed the Certification of Counsel, and attached as Exhibit 2 there's a red-lined version of their compromise order, showing the changes he fought for.

Here is the filing:

12/01/2009 - 974 - Certification of Counsel Regarding Motion of Chapter 11 Trustee to File Under Seal Exhibit A to the Trustee's Motion, Pursuant to 11 U.S.C. Sec. 105(a) and Fed. R. Bankr. P. 9019, for Approval of Settlement Agreement With AutoZone (related document(s) 935 , 936 ) Filed by Edward N. Cahn, Chapter 11 Trustee for The SCO Group, Inc., et al.. (Fatell, Bonnie) (Entered: 12/01/2009)

You will find the red-lined version segment about hearings and transcripts beginning on page 10 of the PDF. We see that Cahn was trying to not only seal the agreement itself, but he was also trying to get all discussion about it in hearings closed to the public and any references in transcripts of hearings sealed as well.

Harumph. So our representative, the People's representative, in the bankruptcy court, Mr. McMahon, stood up for us, and now if any of the lawyers wish to talk about the agreement, we get to listen.

So if somebody slips and tells all, it's out there. Remember when SCO kept doing that at hearings, when it was in their advantage to do so? So... you never know. It ain't over 'til it's over, that great philosopher Yogi Berra told us. And for sure any references to it will be useful, even if they don't spill all the beans. So when you attend the hearings, they won't send you out to the hall.

I really like that we have a representative. For those that don't enjoy PDFs, here is the language, with a line through the parts McMahon was successful in altering:

3. Any hearings held in connection with the terms set forth in the Settlement Agreement shall be held in camera and the portions of any transcript of any hearing disclosing the terms of the Settlement Agreement shall be put and remain under seal.

4. The Settlement Agreement, and any Order approving same, and portions of any transcripts regarding any hearing disclosing the terms of the Settlement Agreement, shall remain filed under seal until further order of the Court, and with any such order to issue only upon notice to AutoZone and after giving AutoZone, SCO and the Office of the United States Trusteee and an opportunity to object to any unsealing of the record, and to appear and be heard at the hearing regarding same.

Isn't that fascinating? Methinks SCO would prefer that we not learn that AutoZone did very well indeed, since it hopes to avoid others in that same category someday using this settlement agreement as a ruler. And that tells us that Cahn is probably still dreaming of money from end users, although maybe just end users who, like AutoZone, were at one time at least customers of SCO or any of the so-called owners of UNIX going back to AT&T. I say so-called, because so did AutoZone, and frankly I defy anyone to draw a straight line of ownership of UNIX. Seriously, we tried here, remember? I am convinced no one can do it, particularly for the early stuff.

I have also been listening to the audio a volunteer purchased for me from the July bankruptcy hearing and another skilled audio guy fixed so I could hear it better. That was the one about whether or not SCO should be sent to Chapter 7. I am very frustrated that I can't share that with you, ever, but that is what the court told me. It's verboten. [But you can buy your own copy and listen to it that way.] I can't thank all our volunteers enough for all the wonderful initiative shown in attending hearings for us and thinking to get audio for me, so I can get more of a nuanced understanding. Even though I can't share it with you, it benefits me tremendously to hear the voices and mannerisms of all the players. In some case, the playahs. I really enjoyed hearing Arthur Spector's voice and listening to the performance. We'd miss a lot, frankly, if you guys didn't attend. So a big Thank You! I guess if you want all the nuances, you need to attend in person.

: D

As for the sealed agreement, someday such things come out in the wash anyway, in my experience. There'll be some future litigation where it gets referenced or attached as an exhibit or whatever. We even know now what Microsoft paid Caldera to end the DrDOS litigation. They were supposed to take that to the grave. And we even finally learned the terms of the BSDi settlement. We were able to access and make it public on Groklaw after many years of it being confidential. Sooner or later, we'll find out what happened with AutoZone, too, I have little doubt.

Meanwhile, we need to think up a plan for covering a three-week trial in Utah.


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