Missing Mobility APA; MORs and omnibus hearing dates
Al Petrofsky
of The SCO Group, Inc. (f/k/a Caldera International, Inc., the
namesake of alt.os.linux.caldera):
Date: Tue, 10 Aug 2010 20:56:43 -0700
From: "Alan P. Petrofsky, equity security holder"
To: "Bonnie G. Fatell, counsel for trustee"
Cc: "Stanley B. Tarr, counsel for trustee"
Subject: Mobility APA, June MORs, and omnibus hearing dates;
In re: SCO Group, Inc. et al., No. 07-bk-11337, Bankr. D. Del.
Dear Ms. Fatell:
I have three inquiries:
1. Near the end of the April 7, 2010 hearing, you stated that once
the final asset purchase agreement for the sale of the mobility
assets was completed, you would "file it of record with the
Court", but I don't see that it was ever filed. What's the
status of that?
(Earlier in the hearing, you had reported that the actual APA
would be materially different from the draft APA that had
previously been filed, and in particular that the estate would
be "selling the intellectual property as opposed to licensing
it", which accounted for the three-fold increase in the purchase
price.)
2. June Monthly Operating Reports (or, at a minimum, statements of
disbursements) were due on July 31 (per FrBkP 2015(a)(5)), but
have not yet been filed. How tardy does the trustee expect to
be with these?
3. Will you be requesting that the court set any more omnibus
hearing dates, or should I contact the court myself if I need to
schedule a motion for hearing?
Thank you for your attention.
Yours truly,
Alan P. Petrofsky
Equity security holder of debtor The SCO Group, Inc.
Within 24 hours, events had definitively answered inquiries 2 and 3
(June MORs were filed, as was a request for more omnibus hearing
dates), but I still haven't heard anything about inquiry 1.
Al Petrofsky
back on August 10 I wrote to Bonnie Fatell, counsel for SCO's
bankruptcy trustee, inquiring about the overdue June monthly operating
reports and about the trustee's failure to file a copy of the final
asset purchase agreement for the sale of the mobility assets to Darl
McBride and his affiliate, Me, Inc Holdings, LLC (the "Mobility APA"),
which Fatell had orally promised to file back at the April hearing.
The overdue MORs were filed the next day, but it took longer to
make any headway on the Mobility APA. After a followup email and
voicemail, Fatell made this response late on Friday, August 20:
Mr Petrofsky- I don't have a transcript of the hrg on the mobility
sale so I don't recall if that statement was made to the
court. Nevertheless, we will send you a copy of the executed APA -
redacted to the extent necessary to protect confidential
information. If when we receive the transcript we confirm that your
recollection is correct we will file the final sale agmt with the
court. Can you enlighten me as to why this is a concern to you?
The docket reflects that she then ordered a transcript on Monday
morning, August 23. It could take up to thirty days before the
transcript is complete. On Tuesday, August 24, I sent her this reply:
I have attached a 55-second clip of the relevant portion of the
official audio recording of the April 7, 2010 hearing. For your
convenience, I have also included below an unofficial
transcription. However, there is no need to trust my transcript
nor to wait for the official transcript: if you just take one
minute to listen to the clip of the official recording, I believe
you will find it clear that you undertook to file a copy of the
Mobility APA. (For a complete copy of the recording, with a
complete unofficial transcript, see
<http://scofacts.org/SCO-BK-1103-unofficial-transcript.html>.)
As to why this is a concern to me: first, this was a sale to an
insider (former SCO Group president Darl McBride), and "insider
transactions require greater scrutiny". Beal Bank, S.S.B. v. Waters
Edge Ltd. P'ship, 248 B.R. 668, 680 (D.Mass.2000). I can hardly
adequately scrutinize the agreement when I have not even seen the
agreement.
Also, as you know, a failure to be clear in a written copyright
transfer led to quite a bit of trouble for the debtors over the
last several years. I would like to have some confidence that that
error has not been repeated. I do not want a situation to arise in
which, a few years from now, McBride is able to file a lawsuit --
strong enough to survive summary judgment -- claiming that the set
of copyrights that was transferred to him by the Mobility APA was a
much larger set than the trustee's successor says it was.
Today, September 1, 2010, the Mobility APA was filed (without any
redactions). See docket No. 1166 in In re: SCO Group, Inc. (f/k/a
Caldera International, Inc), No. 07-bk-11337, Bankr. D. Del.:
<http://scofacts.org/bankruptcy.html>
<http://scofacts.org/nefomatic-test-SCO-Group-bankruptcy.html>
<http://scofacts.org/SCO-BK-1166.pdf>
<http://scofacts.org/SCO-BK-1166-2.pdf>
Here is the 55-second audio clip that I attached to my August 23
email:
<http://scofacts.org/SCO-Group-bankruptcy-1103-audio-clip-APA-filing.mp>
Nick Andrew
If you file a motion for the next Bankruptcy hearing maybe SCO won't
cancel it !
Nick.
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