"Like dominos in a row" (SCO suffer a mortal blow)
Shorty
Manchester, UK Icrontian
Something extraordinary has happened. Novell has filed its Reply in Support of Novell's Motion to Dismiss Amended Complaint [PDF], and in the document it reveals that it has filed an exhibit, the 1995 minutes from the corporate kit of a meeting of the Board of Directors, which clearly and unequivocably say that Novell was to retain the UNIX copyrights in the sale to Santa Cruz that year.
I think it is safe to say that this document from 1995 is likely to prove dispositive. September 18, 1995 is the day before the APA was signed. And here is the Carlton Declaration with the board minutes attached. In attendance at the meeting were Jack Messman, Bob Frankenberg, Elaine Bond, Larry Soasini, Alan Ashton, Ian Wilson, John Young, David Bradford, Ty Mattingly, and Jeff Turner. The last three were there by invitation, not being members of the board.
And there is another bombshell. Novell says that by introducing evidence outside the complaint, such as the Ed Chatlos declaration, SCO is inviting the Court to convert the motion to dismiss into a summary judgment, which they say means the Court now has the option to decide the matter once and for all and with finality right now. They cite a case that says that introducing such outside evidence is "a tactical mistake".
Here is how corporate paperwork is done: a corporation is required to document every major move it makes and typically such documentation is kept in its corporate kit. Normally, that is also where you keep the company's bylaws, articles of incorporation, and annual meetings minutes, as well as minutes of meetings held to approve corporate acts. This documentation is to prove that the corporation is acting with the appropriate approvals and also as a way of showing that the corporation, deemed a person, so to speak under the law, actually is a separate entity that acts, not as a way for the individuals in the company to avoid taxes and liability, but as a legitimate corporate entity. When you go to court, it's not unusual for a judge to tell a party to present its corporate kit, if there is any question about the legitimacy of the corporation. It comes up usually with small close corporations, where there may be only one individual or two or three in the corporation. If they show up with a kit minus such careful documentation, it usually does not go well for them. It's one way to pierce the corporate veil. What a wonderful requirement that turns out to be in this case.
Now that Novell has submitted this document to the court, it reasonably tilts any ambiguity in the APA and Amendment 2 in Novell's favor. And how can SCO possibly win the argument that Novell knew it didn't have copyright ownership, now that they have presented a 1995 document from the corporate kit showing that at a meeting of the board at the time of the sale, Novell absolutely believed that they retained copyrights? As for Ed Chatlos' declaration, it wipes it away as a statement by a man who didn't know what was going on at the highest levels of the company, which is how Novell paints it.
It's up to Judge Kimball to decide what persuades him, but this document gives him a peg to hang his hat on and to dismiss SCO's complaint. And if he decides SCO has no UNIX copyrights, what exactly can it do to anyone then? The legal cases would then start to stagger and fall, like dominos in a row.
Source: Groklaw
I think it is safe to say that this document from 1995 is likely to prove dispositive. September 18, 1995 is the day before the APA was signed. And here is the Carlton Declaration with the board minutes attached. In attendance at the meeting were Jack Messman, Bob Frankenberg, Elaine Bond, Larry Soasini, Alan Ashton, Ian Wilson, John Young, David Bradford, Ty Mattingly, and Jeff Turner. The last three were there by invitation, not being members of the board.
And there is another bombshell. Novell says that by introducing evidence outside the complaint, such as the Ed Chatlos declaration, SCO is inviting the Court to convert the motion to dismiss into a summary judgment, which they say means the Court now has the option to decide the matter once and for all and with finality right now. They cite a case that says that introducing such outside evidence is "a tactical mistake".
Here is how corporate paperwork is done: a corporation is required to document every major move it makes and typically such documentation is kept in its corporate kit. Normally, that is also where you keep the company's bylaws, articles of incorporation, and annual meetings minutes, as well as minutes of meetings held to approve corporate acts. This documentation is to prove that the corporation is acting with the appropriate approvals and also as a way of showing that the corporation, deemed a person, so to speak under the law, actually is a separate entity that acts, not as a way for the individuals in the company to avoid taxes and liability, but as a legitimate corporate entity. When you go to court, it's not unusual for a judge to tell a party to present its corporate kit, if there is any question about the legitimacy of the corporation. It comes up usually with small close corporations, where there may be only one individual or two or three in the corporation. If they show up with a kit minus such careful documentation, it usually does not go well for them. It's one way to pierce the corporate veil. What a wonderful requirement that turns out to be in this case.
Now that Novell has submitted this document to the court, it reasonably tilts any ambiguity in the APA and Amendment 2 in Novell's favor. And how can SCO possibly win the argument that Novell knew it didn't have copyright ownership, now that they have presented a 1995 document from the corporate kit showing that at a meeting of the board at the time of the sale, Novell absolutely believed that they retained copyrights? As for Ed Chatlos' declaration, it wipes it away as a statement by a man who didn't know what was going on at the highest levels of the company, which is how Novell paints it.
It's up to Judge Kimball to decide what persuades him, but this document gives him a peg to hang his hat on and to dismiss SCO's complaint. And if he decides SCO has no UNIX copyrights, what exactly can it do to anyone then? The legal cases would then start to stagger and fall, like dominos in a row.
... and thats a rap everybody"Moreover, contemporaneous, authoritative documentary evidence shows that at the highest levels of the organization, Novell approved the transaction on the understanding that "Novell will retain all of its . . . copyrights." (September 18, 1995, Minutes of the Meeting of the Board of Directors of Novell, Inc. at 2, attached as Ex. A to Declaration of Kellie Carlton in Support of Novell, Inc.'s Motion to Dismiss.)"
Source: Groklaw
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Comments
Seriously though, SCO's name needs to run the mud - officially.