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| Authored by: Anonymous on Monday, June 17 2013 @ 07:17 AM EDT |
SCO may be bankrupt. but if one takes it up a level and makes the Directors and
Officers also responsible, then it would make the people deciding to initiate a
frivolous lawsuit a lot more accountable.
Just think how the BOD wold be feeling now with the case being resumed and the
judge accepting how to proceed based on IBM's recommendations.
This next round ( Salvo) is going to be very interesting
CC :>)[ Reply to This | Parent | # ]
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| Authored by: Anonymous on Monday, June 17 2013 @ 11:54 AM EDT |
Most places with a 'loser-pays' framework also contain rules to preclude the
'loser' from avoiding payment along the way. Since the loser has to pay *along
the way*, if it loses a Motion, and then fails to pay those Motion costs, the
winning side gets to move for security for costs. Which is to say, that if the
court concludes that one side does not have the capability of paying the costs
of trial (and not paying outstanding costs orders is good evidence of that lack
of capability), then that party may be ordered to post security to cover the
possibility of a future failure at trial.
But security of costs is not ordered in the general case. Only where there is
evidence of inability to pay.
SCO is in bankruptcy. Prima facie, it does not have the capability of paying
future costs.* Prima facie, it does not have the capability of posting security.
It possibly could find a backer willing to post that security as a bet on the
viability of the claim, but it would not get to demand to 'flip a coin'.
Litigation should not be a 'heads I win, tails you lose' proposition. A
loser-pays regime militates against that sort of outcome.**
If SCO v IBM had taken place in Ontario, SCO would have been check-mated
probably long before it actually declared bankruptcy.
* If SCO had had a viable business it might actually have been in a better
position to post security or to pay ongoing costs, after declaring bankruptcy,
since the burden of existing debt payments would have been lifted. But then, SCO
had neither a viable claim nor a viable business.
** Yes, the argument is made that loser-pays reduces the ability of someone with
a good claim going to court. But realistically, it only means that someone with
a good claim and shallow pockets should not litigate so as to assume the risks
of losing a motion and having to pay costs. This may mean acquiescing to
discovery requests which are slightly overbearing, but not necessarily in
denying discovery requests which are outrageous. The dividing line is
discoverable in the case-law. If the request is outrageous and clearly so, the
shallow-pocket plaintiff can fund the litigation from the costs paid by the
deep-pocket (and over-testosteroned) defendant. (Assuming throughout that the
plaintiff's counsel are on contingency).
Many cases make it to trial where the first time a judge is involved is at the
mandatory Pre-Trial conference.
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