IBM Replies to SCO's Opposition to Motion to Convert(Groklaw)

Also read Novell Replies to SCO's Opposition to Novell's Motion to Convert(Groklaw)

I have to laugh.

I mean it is not nice to laugh at pleadings presented before a court of law but I just have to wonder what Judge Gross is thinking.

Now this is not an atypical development for a bankruptcy. Sure, they often come up with a plan and somehow are able to emerge from Chapter 11 much better off than they went in. But, that is not always the case.

I feel pretty sure that Judge Gross has figured out just what SCO is up to. Or, not up to as the case may be. SCO is bleeding cash and failing to present any kind of plan that the court could rely upon to save the company. It is just not there.

Reading the responses from Novell and IBM you really have to wonder.

You have to keep in mind that even the Judge can move to transfer the case to Chapter 7. On his own motion. And when do you suppose a judge might make such a motion. Well, normally it is when the result is obvious buy no one is bothering to make the motion. That would be SCO of course. But, here you find the US Trustee first bringing the motion and then both Novell and IBM follow up with their own motions. I think the chances are pretty high that Judge Gross has been in communication with SCO, the trustee, Novell and IBM. And I am sure what his question to them was. “Nothing seems to be happening here, what is up?”. Of course, SCO can say nothing even though they have had “possession of the ball” for a couple years now. And the only thing they seem to be able to argue is this faint hope that somehow they will win on appeal and get to see a jury. But, the sad part is that a jury is not going to help them at all. They do not have the evidence. Judge Kimball has already decided that.

There is a reason why many jurisdictions have adopted the “parole evidence rule”. Simply put parole evidence is lousy evidence. So the best the SCO can hope for is to proceed with lousy evidence if any at all. And that has been their problem from day one in these cases.

But, there is one point that you should not miss in these pleadings.

Once an independent trustee gets appointed the current SCO management is out. Not only are they out of a job. They no longer hire lawyers or even decide how the pending litigation should be handled. And that is why SCO is saying that if they go into Chapter 11, the litigation is likely to be settled for crap. Well, it should never have been brought in the first place based upon the evidence SCO has. That is dead obvious.

And it is true that the public (that be us) did not know how poor SCO's evidence was back when some key decisions were made by SCO. The public (that be us) is now informed to the extent that SCO lawyers were informed on day one. And, SCO lawyers should be sued for malpractice. At a minimum they should be sued for being incompetent. Unless, as some clearly think, that SCO management and their lawyers knew they were going to lose if they ever do get to trial. In other words, the only chance they had was based upon a law suit being such a big nuisance that everyone else would just fold. IBM would fold and pay. Novell would fold and transfer those copyrights. Chrysler-Daimler? would fold and pay up. AutoZone? would fold and pay up. Etc. Etc. It was all an extortion racket.

And now the lawyers who deceived SCO into spending millions on legal fees have no choice but to put up the most ridiculous claims.

IBM lawyers are laughing. Novell lawyers are laughing. I am laughing. Chances are that even the SCO lawyers are laughing. All the way to the bank no doubt.

But, as I have often pointed out, we do not know what SCO lawyers told SCO management. Maybe they told them the truth based upon the evidence they knew they had. Hoping that fishing might dig something up, right? But, charging a company on the verge of bankruptcy to spend $30 million or so in legal fees and expenses on bogus legal issues approaches criminal activity. Good lawyers just do not do that.

Deceitful lawyers will say anything to a client in order to scare up some fees. But, we do not know what they told SCO. We do know what they should have said. We do know what they should have told SCO. But, of course, without the extortion game SCO would not have had the millions to even pay the SCO lawyers. Microsoft was a willing mark. And it is even fair to suggest SUN was a willing mark. Of course, both SUN and Microsoft did get something for their money. Just not what they had hoped.

Judge Gross will not be laughing at the hearing coming up. He has been there before in all likelihood. That is the nature of bankruptcy. Many companies go down for the count. And Judge Gross has been more than fair to SCO.

Read the replies from Novell and IBM. They are pretty good examples of dead pan humor. I mean what can they really say? “We think the time is up, your honor”.