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To read comments to this article, go here
SCO Files a Request to Submit for Decision in IBM Case ~pj
Friday, June 15 2012 @ 11:21 AM EDT

Once again, SCO asks the court to let it go forward or at least render a decision on whether or not its case against IBM can get out of the mud and go to trial.

I can't tell you how much I look forward to more SCO highjinks.

NOT.

I look forward to it about as much as IBM and the judge and probably Boies Schiller, who isn't getting paid unless they ... hahaha... win. And unless they win, after the Oracle debacle, I'm afraid they will lose their standing in the league. And you? You can't wait, I'm guessing? Nope? Well, who then? Mr. Ralph Yarro, I presume? Here's a recent, slanted article in the Salt Lake Tribune, where SCO mysteriously is said to be the owner of UNIX once again, just like in their legal fantasy league of long ago.

Does the picture of Ralph Yarro in that article look like the guy in the red shirt and the misleading signs in this story we did in 2003?

Here's part of what Tom Harvey reverently wrote about Yarro and SCO in the Salt Lake Tribune:

But in 2004 Yarro and Canopy bitterly parted ways and fought over his ouster in competing lawsuits. Yarro ended up as the single largest shareholder of The SCO Group, a Canopy company that held the rights to the Unix computer operating system.

In 2003, SCO filed an infamous lawsuit against IBM, accusing it of contract violations for allegedly using SCO’s Unix operating system as the basis for changes that made the Linux operating system a viable competitor. SCO was accused of launching an attack on the open-source community that backed Linux and Yarro was roundly vilified. The lawsuit remains pending but SCO eventually ended up in bankruptcy court, where it still remains today. Unix was sold to another company.

In the mid-2000s, Yarro also was known for his extensive anti-pornography campaign.

Some of us, of course, think the SCO legal antics were pornography of a sort.

Harvey makes it sound like the Yarro/Canopy litigation resulted in a win for Yarro, since he got all those yummy shares in SCO. Stop and think, people. Canopy didn't just fall off a turnip truck. It accurately forecast the value of those shares, I'd say. And it was a settlement, not a win at trial.

And notice that there is no mention in the article of the SCO v. Novell lawsuit, which Novell won, and which firmly rejected SCO's claim to ownership of UNIX copyrights. What SCO had is the code and the right to license it, and any UnixWare code it wrote after 1995, and only in their dreams is that the same thing as UNIX. It sold that on, even. Novell owns UNIX copyrights, and the X Group owns the trademarks.

Anyway, my point is, Yarro is the single largest shareholder in SCO, the lucky duck. The trustee in bankruptcy more or less aced him on getting any moolah repaid on the loan it gave SCO to keep litigating, some $2 million plus, and his SCO shares are worth nothing unless the IBM case is a winner for SCO, so that's who might be interested in going forward, I'm guessing.

If you are curious about that litigation with Canopy, we covered that smarmy mess too here. Wear a bib and have a trash can handy, in case you suddenly feel the urgent need to throw up. Harvey of the Salt Lake Tribune forgot to mention something about the Canopy case that you'll bump into if you read up on it. Two people died.

Here are the filings:

06/14/2012 - 1107 - REQUEST to Submit for Decision re 1095 MOTION to Reopen Case filed by Plaintiff SCO Group. (Attachments: # 1 Exhibit A - TSG Order Granting IBM Stay Modification)(Hatch, Brent) (Entered: 06/14/2012)

I'm afraid SCO has a point. The delay has been because the case keeps being reassigned from one judge to another. It was supposed to be heard in April, but then the case got reassigned again. Unless Utah has more judges to play musical chairs some more with this awful assignment, I think Judge Nuffer is stuck. As am I.

Here's the SCO request, as text:

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

Brent O. Hatch (5715)
[email]
Mark F. James (5295)
[email]
HATCH, JAMES & DODGE, PC
[address, phone, fax]

David Boies (admitted pro hac vice)
[email]
Robert Silver (admitted pro hac vice)
[email]
Edward Normand (admitted pro hac vice)
[email]
BOIES SCHILLER & FLEXNER LLP
[address, phone, fax]

Stuart Singer (admitted pro hac vice)
[email]
BOIES SCHILLER & FLEXNER LLP
[address, phone, fax]

Counsel for The SCO Group, Inc.

_____________

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

_____________

THE SCO GROUP, INC., by and through the
Chapter 11 Trustee in Bankruptcy, Edward N.
Cahn,

Plaintiff/Counterclaim-Defendant,

vs.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

_________

THE SCO GROUP, INC.’S REQUEST TO
SUBMIT FOR DECISION

Civil No.: 2:03-CV-00294-DN

Honorable David Nuffer

Pursuant to Local Rule 7-3, Plaintiff/Counterclaim-Defendant, The SCO Group, Inc. (“SCO”) respectfully submits this Request to Submit for Decision, requesting the Court to rule on SCO’s pending Motion to Reopen the Case (the “Motion”) in light of the recent order lifting the stay of IBM’s counterclaims by the bankruptcy court presiding over SCO’s Chapter 11 proceedings (the “Bankruptcy Court”). Where IBM agreed in its opposition to the Motion that this Court “should reopen the case when the stay has been lifted as to IBM’s counterclaims” and stipulated in the Bankruptcy Court that “IBM shall not oppose the reopening of the Utah Action,” SCO respectfully submits that the Motion should be granted forthwith.

BACKGROUND

1. On November 4, 2011, SCO filed its Motion to Reopen the Case (Docket No. 1095) in order to proceed with its remaining unfair competition and tortious interference claims. Those claims, which the Chapter 11 Trustee overseeing SCO’s bankruptcy estate deems meritorious, are the only remaining assets of the estate.

2. On November 21, 2011, Defendant/Counterclaim-Plaintiff International Business Machines Corporation (“IBM”) filed its opposition to the Motion. (Docket No. 1100.) Even though the Bankruptcy Code had automatically stayed all of IBM’s counterclaims against SCO without disturbing SCO’s right to pursue its claims against IBM, IBM opposed the Motion on the grounds that litigating SCO’s claims without IBM’s counterclaims “would be inefficient and fundamentally unfair.” (Id. at 1.)

3. Accordingly, IBM asserted that the Court “should reopen the case when the stay has been lifted as to IBM’s counterclaims.” (Id. at 6 (emphasis in original).) In fact, IBM argued for an order “providing that this case shall be reopened within 5 days of the filing of a

1

notice (by any party) that the stay of IBM’s counterclaims has been lifted.” (Id. at 14 (emphasis added).) SCO hereby provides such notice.

4. On November 28, 2011, Judge Waddoups1 scheduled a hearing on the Motion for April 18, 2012. (Docket No. 1101.) Judge Benson subsequently moved the hearing date to April 23, 2012. (Docket No. 1105.)

5. On December 8, 2011, SCO filed its Reply Memorandum in Support of Its Motion to Reopen the Case. (Docket No. 1102.) The Motion was thenceforth ripe for adjudication.

6. On February 16, 2012, while the April 23, 2012 hearing was still pending, SCO and IBM stipulated in SCO’s bankruptcy proceedings to modify the automatic stay of IBM’s counterclaims so as to permit IBM to “defend the Utah action and prosecute its Counterclaims against SCO.” (Ex. A at 4.) As part of that stipulation, IBM also agreed that “IBM shall not oppose the reopening of the Utah Action.” (Ex. A at 5, ¶ 4 (emphasis added).) On February 17, 2012, the Bankruptcy Court entered an order approving the stipulation and modifying the automatic stay “as set forth” in the stipulation. (Id. at 1.)

7. On April 2, 2012, following the transfer of the hearing from Judge Benson’s calendar to this Court’s calendar, the Court vacated the April 23, 2012 hearing.

2

REQUEST

Because SCO’s Motion to Reopen the Case has been pending since December 8, 2011, and was originally set for a hearing to be held on April 18, 2012, SCO respectfully requests that the Court submit the Motion for a decision, pursuant to Local Rule 7-3.

In addition, because IBM agreed that the Court should “reopen the case when the stay has been lifted as to IBM’s counterclaims” and argued for an order “providing that this case shall be reopened within 5 days of the filing of a notice (by any party) that the stay of IBM’s counterclaims has been lifted,” SCO respectfully asks the Court to grant SCO’s Motion forthwith and proceed with the adjudication of the unresolved summary judgment motions in this case, which have been pending since 2006. Indeed, because IBM secured the lifting of the automatic stay on its counterclaims in the Bankruptcy Court by agreeing “not [to] oppose the reopening of the Utah Action,” the Motion should be deemed to be unopposed.

Should the Court grant the Motion, SCO respectfully submits that the Court would benefit from oral argument on the unresolved summary judgment motions and respectfully requests that the Court schedule such argument. In addition, insofar as the Court would benefit from supplemental briefing regarding any changes in the law relevant to the unresolved summary judgment motions, SCO remains prepared to provide such briefing at the Court’s direction.

3

DATED this 14th day of June, 2012.

By: /s/ Brent O. Hatch
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch

Mark F. James
BOIES, SCHILLER & FLEXNER LLP
David Boies
Robert Silver
Stuart H. Singer
Edward Normand

Counsel for The SCO Group, Inc.

_______________
1 On November 9, 2011, this case was reassigned to District Judge Clark Waddoups following District Judge Tena Campbell’s recusal (Docket No. 1099); on December 9, 2011, the case was in turn reassigned to District Judge David Sam following Judge Waddoup’s recusal (Docket No. 1103); on December 14, 2011, the case was again reassigned, this time to District Judge Dee Benson, following Judge Sam’s recusal (Docket No. 1104); and on March 31, 2012, following the appointment of this Court to the District Court bench, the case was reassigned to this Court (Docket No. 1106).

4


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