Latest on SCO vs. Novell

[sethg at ropine.com (Seth Gordon)]

Jerry Feldman wrote:
> I'm sure that SCO's attorneys,
> the best that money can buy (eg. Boise and Schiller) will come up with
> something to prolong the case and keep Judges Kimball and Wells busy
> until they both retire :-)

But see ??132-136 of Novell's amended counterclaims
(http://www.groklaw.net/article.php?story=20060921155822851):

132. Novell holds "all right, title and interest," including equitable
interest, to the SVRX Royalties as defined in the APA.

133. SCO has wrongfully retained in part or in full portions of all SVRX
Royalties to which Novell was entitled under the APA.

134. In addition, SCO has wrongfully retained a 5% administrative fee
for administering the SVRX License Program but having failed to fulfill
its administrative auditing duties under the APA.

135. Novell seeks restitution of all monies constituting SCO's unjust
enrichment, including all monies held by SCO in constructive trust for
Novell pursuant to California Civil Code ?? 2223 and 2224.

136. Novell seeks an order from this Court imposing a constructive trust
on revenues SCO unjustly received by failing to perform its
administrative auditing and remittance obligations under the APA.

See also http://www.groklaw.net/article.php?story=20070109080031668 in
which Novell states:

"Contrary to SCO's assertion that a preliminary injunction should be
denied because it may accelerate SCO's bankruptcy, SCO's imminent
bankruptcy is a compelling reason to grant Novell's motion. When SCO
goes into bankruptcy, it will not be because of Novell's motion, but
because of its own financial missteps. For SCO, bankruptcy is
inevitable; it characterizes its assets as merely those 'remaining' and
does not rebut Novell's arguments that its bankruptcy is imminent. (Opp.
at 53 n.8, App. A at 22-23 (??55, 58-59).) Once this bankruptcy occurs,
Novell will lose all ability to collect its judgment. See In re PKR,
P.C., 220 B.R. 114, 117 (B.A.P. 10th Cir. 1998) ('constructive trusts
are not recognized or imposed in bankruptcy proceedings unless the trust
was imposed either statutorily or judicially prior to the bankruptcy').
Novell's rights therefore must be preserved before SCO squanders even
more of Novell's trust assets."

If Novell gets the order setting up the constructive trust, SCO won't be
able to pay its attorneys any more.

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