Novell Acquisition Going Through

Novell No Responses »
Apr 222011

Novell’s acquisition by Attachmate, which hung on the $450 million purchase of around 882 of its patents and patent applications by the Microsoft-led CPTN consortium, can go through now that regulators on both sides of the pond figure they’ve tied CPTN’s hands.

The Justice Department confirmed Wednesday morning that CPTN, which includes Oracle, EMC and Apple, had changed the terms of its acquisition of the Novell IP and “the department will allow the transaction to proceed.”

Novell and Attachmate need CPTN’s $450 million so Novell shareholders can be paid $6.10 a share, or the round sum of $2.2 billion, a lot of it out of Novell’s own stash.

According to patent watcher Florian Mueller, Germany’s Federal Cartel Office waved the deal through on essentially the same terms a few hours later, not waiting for its April 26 deadline to expire.

As suspected, the two agencies shared information and “assessments of likely competitive effects and coordinated on potential revisions to the parties’ agreements.”

In its Wednesday statement the DOJ said it had “open source concerns” – apparently put in its head by the Open Source Initiative (OSI) and the Free Software Foundation (FSF) – and that, as originally proposed, the CPTN deal would have jeopardized “the ability of open source software, such as Linux, to continue to innovate and compete in the development and distribution of server, desktop and mobile operating systems, middleware, and virtualization products.”

So, speaking at least for itself, the DOJ said, “Although we recognize that the various changes to the agreement recently made by the parties are helpful, the department will continue to investigate the distribution of patents to ensure continued competition.”

CPTN originally intended to acquire the patents in a “two-stage transaction” that would have passed the IP to CPTN first and then seen it carved up among the four companies.

Well, they’ll still divvy the patents up, but as it became clear last week, Microsoft will sell its quarter share of the IP back to Attachmate and in return get a license to all Novell patents: the 882 – or whatever the actual number is, that’s still unclear – and whatever patents still remain with Novell. And EMC won’t get any of the 33 Novell patents and patent applications related to virtualization.

That’s 33 virtualization patents, not 31, as OSI had it from the German regulators last week, Mueller noted.

There’s one odd thing the DOJ said about the new terms and that’s that “All of the Novell patents will be acquired subject to the GNU General Public License, Version 2, a widely adopted open-source license, and the Open Invention Network (OIN) License, a significant license for the Linux System; CPTN does not have the right to limit which of the patents, if any, are available under the OIN license; and neither CPTN nor its owners will make any statement or take any action with the purpose of influencing or encouraging either Novell or Attachmate to modify which of the patents are available under the OIN license.”

Makes the DOJ sound like a GPL enforcer, doesn’t it?

Absent any further information, Mueller thinks CPTN can’t muck with any existing Novell obligations to the Open Invention Network (OIN). Attachmate gets to decide whether it stays in the club. Not that it matters much, Mueller figures, since “the flood of patent lawsuits especially in the smartphone space shows that the OIN doesn’t deter anyone from asserting patents against Linux and Linux derivatives like Android.”

Otherwise, he’s not sure, if the DOJ has imposed anything new on either CPTN or Novell beyond what’s known. The DOJ didn’t seem to restrict the patents to being available on a royalty-free basis despite what the OSI and FSF would have liked.

See http://www.justice.gov/opa/pr/2011/April/11-at-491.html

Posted by rhall2091 at 9:48 am

DOJ Second Look at Patent Deal Holds Up Novell Acquisition

Novell No Responses »
Feb 062011

Evidently the appeal by the Open Source Initiative (OSI) and the Free Software Foundation (FSF) to the Justice Department to look closer at Novell’s deal to sell its patents to the CPTN brotherhood of Microsoft-Apple-Oracle-EMC as part of its $2.2 billion acquisition by Attachmate has worked.

Both Novell and CPTN Holdings got a second request for information from the DOJ on Wednesday just as its Hart-Scott-Rodino (HSR) waiting period was about to expire, according to a new SEC filing.

The requests push the HSR antitrust review out 30 days past their coughing up whatever information the regulators are looking for unless they get an early dispensation.

That explains why Novell stock, which is supposed to go to Attachmate for $6.10-a-share cash, was closed at $5.97 on Thursday after dipping down to $5.92.

Punters were taking their winnings off the table figuring the delay turns their investment into dead money. Either that or fear that the acquisition, which Novell was trying to get closed this quarter, could be derailed since the sale of what we now know is 861 Novell patents and patent applications to CPTN for $450 million is key to Novell shareholders getting all of their $6.10.

Wall Street rumors have suggested that Red Hat wanted to buy the patents to keep them out of the hands of the CPTN mob and for all we know Red Hat – or maybe Red Hat and some of its friends – was the “Party E” Novell previously told the SEC came around on January 13 looking to cut a deal for the patents and “maybe more.”

There’s a direct line between Red Hat and the monkey wrench thrown into its rival getting sold off. Michael Tiemann, the complaint-writing president of OSI, is also VP of open source affairs at Red Hat.

Nobody on the outside has rooted through the patent portfolio or can say if open source is implicated in any way, and Novell has denied that the patents include its Unix IP, but Tiemann is operating on the assumption that the deal bodes no good for open source since open source is the “sole or leading competition” for CPTN crowd’s operating systems, middleware, virtualization and cloud interests.

He has claimed the deal “represents a potentially new and unprecedented threat against open source software” and “a MAJOR disruption to the competitive landscape,” accusing CPTN’s four principals of having “a long history of opposing and misrepresenting the value of open source software” and making “hostile statement towards open source.”

He sees in their combination “nefarious intentions” and a “potential for collusion between these competitors to reduce competition amongst them and to harm competition that exists in the marketplace today.” He figures “CPTN creates a cover to launch patent attacks against open source while creating for each principal a measure of plausible deniability that the patent attack was not their idea.”

OSI’s complaints to the German regulators apparently haven’t been resolved either.

See http://www.sec.gov/Archives/edgar/data/758004/000119312511022666/ddefa14a.htm.

Posted by rhall2091 at 10:44 pm

Secret Buyers of Novell Patents Found Out

Novell No Responses »
Dec 172010

Gotta love red tape.

The mysterious Microsoft-organized consortium otherwise known as CPTN Holdings LLC that bought 882 of Novell’s patents for $450 million cash so Novell could sell out to Attachmate Corporation for another $1.75 billion registered with the German antitrust authorities on December 9 and there on the Bundeskartellamt’s web site for all the world to see are the identities of Microsoft’s buddies: Oracle, EMC and Apple.

My, my, no small fry there. And they say their business is “patents.”

Patent watcher Florian Mueller points to the disclosure in his blog and says he got it in turn from Twitter user @VM_gville. Florian said the account subsequently disappeared.

The scare-open-source-people-to-death patent deal is apparently the cornerstone on which the acquisition rests.

The exact patents CPTN got have still not been found out. Novell said on its web site that the litigious Unix copyrights stay with Novell, meaning control passes to Attachmate, whose intentions are unclear and which is apparently beholden to Microsoft.

Less the $1.03 billion Novell told the SEC it had in the bank and the $450 million for the 882 patents, Attachmate’s price works out to a mere $720 million. The two transactions are expected to close in Q1.

The terse notice on the Bundeskartellamt web page is number B5-148/10. If there’s a document behind it, it evidently ain’t public.

See http://www.bundeskartellamt.de/wDeutsch/zusammenschluesse/zusammenschluesse.php and http://fosspatents.blogspot.com/2010/12/cptn-holdings-llc-acquirer-of-882.html.

Posted by rhall2091 at 9:03 am

Novell Sells Out to Attachmate; Microsoft Gets IP

Microsoft, Novell No Responses »
Nov 252010

Novell, which has been on the block for months, said Monday morning that it’s selling out to Attachmate Corporation for $6.10 a share, or roughly $2.2 billion in cash.

At the same time Novell said it’s also selling certain unidentified intellectual property to a thing called CPTN Holdings LLC, a consortium of equally unidentified technology companies organized by Microsoft, for $450 million in cash, a payment that’s cozily reflected in the $2.2 billion Attachmate is paying.

Less the $1.03 billion Novell told the SEC it has in the bank and the $450 million for what Novell told the SEC was 882 patents, Attachmate’s price works out to a mere $720 million.

The Microsoft-side of the news immediately sent people to the Patent and Trademark Office where they could find only 461 patents in Novell’s name going back to 1992. They also found 287 patent applications.

Presumably the IP sale will terminate Novell’s lingering antitrust lawsuit against Microsoft over WordPerfect. Microsoft’s only got a year left on its pledge not to press patents right against Novell’s Linux operating system, but, more importantly, it’s got a problem with Google and Android, enough that it sued Motorola over its Android phone.

It took Novell more than two days for its chief marketing officer John Dragoon to say on the company’s web site that Novell’s Unix copyrights will stay with Novell. God knows it wasn’t answering the phone.

Anyway, the two transactions are expected to close in Q1 and it appears that Novell will actually be the surviving entity owned by Attachmate by way of a “reverse triangular merger.” (See http://www.consortiuminfo.org/standardsblog/article.php?story=20101124103213556.)

Attachmate is owned by an investment group led by Francisco Partners, Golden Gate Capital and Thoma Bravo.

Novell has been looking for a buyer since March 2 when little-known Elliott Associates LLP offered to buy the joint for $5.75 a share, a price then valued at $2 billion. The offer, which Novell claimed was too low, especially since Elliott would have gotten the billion dollars Novell has in the bank, sent it scampering to find an alternative, which has proven no easy matter despite purported interest from some 20 concerns.

The Wall Street Journal claimed a couple of months ago that VMware was interested in buying Novell’s second-string Linux operating system SUSE. Now there is speculation that Microsoft wanted to stop VMware from getting its hands on SUSE and competing against Microsoft’s server-virtualization combo.

In an unusual turn of events, Attachmate issued its own separate press release about the acquisition saying that Elliott Management Corporation, father of Elliott Associates, would become an equity shareholder in Attachmate by virtue of its stock position in Novell.

According to Yahoo’s financial site Elliott owns 7.03%, making it Novell’s second-largest institutional investor.

The press release included a statement from Elliott, again raising questions about whether Elliott was a stalking horse and setting one to wondering if Microsoft wrote the entire playlet.

Elliott is quoted as saying that it’s “pleased to have been a major catalyst in this transaction, enabling Novell’s shareholders to realize substantial shareholder value. Novell has a robust product set that we believe will create a significant value opportunity as part of the Attachmate Corporation portfolio of products.”

The $6.10 a share that Attachmate and its owners have put on the table is said to represent a 28% premium to Novell’s closing price right before the Elliott offer and a 9% premium to Novell’s closing price Friday.

Novell CEO Ron Hovsepian released a statement saying, “After a thorough review of a broad range of alternatives to enhance stockholder value, our board of directors concluded that the best available alternative was the combination of a merger with Attachmate Corporation and a sale of certain intellectual property assets to the consortium. We are pleased that these transactions appropriately recognize the value of Novell’s relationships, technology and solutions, while providing our stockholders with an attractive cash premium for their investment.”

Novell deferred further comment.

Microsoft’s deputy general counsel of intellectual property and licensing Horacio Gutierrez issued a statement saying, “We are pleased to be a part of the acquisition of certain intellectual property assets of Novell. Microsoft looks forward to continuing our collaboration with Novell into the future, to bring mixed-source IT solutions to customers.” Then Microsoft shut up.

The Seattle-based Attachmate plans to operate Novell as two business units – Novell and SUSE – and said it “will join them with its other holdings, Attachmate and NetIQ.”

Attachmate, which is supposed to compete with such as IBM, sells software to manage access to enterprise applications and databases including information stored on mainframes. Its products cover terminal emulation, host connectivity, fraud management, legacy system upgrades, security and applications integration. SUSE claims to have a corner on the Linux-on-mainframe market.

Novell will have to pay Attachmate $60 million if it gets an unimaginably better offer. Novell told the SEC that “In certain other circumstances upon termination of the merger agreement by Novell, Attachmate will be required to pay Novell a reverse termination fee equal to $120 million.”

Provisions have been made for the patent deal to go ahead even if Attachmate doesn’t wind up with the rest of Novell and even if the substitution acquirer wants them. Worst case CPTN will still get a royalty-free, fully paid-up patent cross-license covering all of Novell’s patents and patent applications.

Attachmate is going to be looking for $425 million equity financing and $1.09 billion in debt financing to buy Novell. From what the SEC was told apparently it’s got some commitments. Looks like it’s counting on using Novell’s piggybank because Novell told the regulator that “Attachmate has represented to Novell that the net proceeds contemplated by the equity funding and debt commitment letters, together with cash and cash equivalents available to Attachmate (including cash available to Novell and its subsidiaries), will in the aggregate be sufficient for the consummation of the merger upon and in accordance with the terms and conditions of the merger agreement.”

Posted by rhall2091 at 7:57 am

Novell Sale May Fall Through: Reuters

Novell No Responses »
Sep 252010

It’s unlikely that anybody in the industry needs three anonymous Reuters sources to tell them that NetWare has been the stubborn donkey on the bridge holding up the sale of Novell for lo the six months the company’s been in play.

Everybody has known for years and years that that thing has been an albatross around Novell’s neck. Heck, if Novell had been able to solve its NetWare problem it wouldn’t have bought SUSE Linux.

Anyway, Reuters says that Novell can’t get whatever ridiculous price it’s demanding for the little bloodsucker and that if it can’t unload the thing at its valuation it may abort the sale of SUSE and stay independent, or IPO a division, or something. It doesn’t want to sell off SUSE to VMware or CA or whoever else has come a calling and be left there with NetWare in its hand.

Reuters identified Los Angeles-based Platinum Equity as having tired of the “onerous” and “difficult” process of trying to buy Novell’s legacy assets and quitting the field. Its bid some time back didn’t meet management expectations.

Other candidates to buy the assets were identified as Platinum’s buyout partner Gores Group and Attachmate, fingered last week by the Wall Street Journal as a possibility, as well as Vector Capital, Vista Equity Partners and Symphony Technology Group.

SUSE could reportedly fetch a rich multiple but evidently not enough to cover the low value placed on the rest of the company, which one of Reuters’ sources aptly called a “dying cow.”

Another source said a combined offer might reach $6.25 a share, 50 cents better that the rejected Elliott Associates bid of $5.75 that set the Novell pinball in motion.

If a sale falls through, one can easily imagine Novell sinking back to its pre-Elliott sub-five dollar price followed by a hostile tender for, oh, $5.50. One can also imagine investors filing lawsuit against management.

As the Reuters story got read Wednesday night, Novell’s stock price fell 7% after-hours from its $6.51 close to $6.09. It closed at $6.08 Thursday after spending time around $5.93.

Posted by rhall2091 at 7:17 am

Novell Wipes the Floor with SCO

Novell, SCO No Responses »
Jun 112010

It’s an utter rout.

Linux is apparently saved whether it deserves to be or not.

SCO Thursday lost its bid to get the jury verdict awarding Novell the Unix copyrights overturned along with its bid to get the copyrights despite the jury decision. It also lost its right to sue IBM for copying Unix code into Linux.

Unless it decides to appeal, one of its lawyers said, it’s all over for SCO. And it’s not clear if SCO has the financial staying power to last through an appeal. The legal bill for another appeal is already paid; it’s SCO basic viability that’s in question. Of course, it doesn’t have to be an operating company to get an appellate decision.

Deciding what to do next ultimately rests with the bankruptcy trustee, the retired district court judge currently in charge of SCO, and he was out-of-pocket Thursday. SCO’s general counsel Ryan Tibbets said the company’s lead outside lawyer was also out-of-pocket and anyway “you can’t come up with a strategy in three hours.”

SCO has 30 days to make a move.

After a federal jury found in March that the Unix copyrights never transferred to the Santa Cruz Operation and so never transferred to its descendent SCO, SCO filed two post-trial motions with the Utah district court that heard the case. One – and it was a long shot – asked the judge who presided over the case to overturn the jury’s verdict as a matter of law. The second – a little less of a long shot – asked for a new trial on the grounds that it wasn’t clear Novell should have won.

The judge denied both motions. He simply found Novell’s rendering of events, its evidence and its witnesses – which he details – overwhelmingly more credible and dismissed out of hand SCO’s contention that the “verdict cannot be squared with the overwhelming evidence and the law.”

It was also agreed by SCO and Novell before the trial began that in the event SCO lost the judge would decide whether to award SCO the copyrights anyway because it should have gotten them under the muffled intent of the infamous amended Asset Purchase Agreement (APA).

SCO kinda had its hopes pinned on this move but the judge also denied this maneuver, which is called specific performance in legal circles, because SCO didn’t need them to exercise its limited rights and because the intent was absent- “Novell purposefully retained those copyrights,” he said.

More importantly, along with it he decided that Novell had every right to waive SCO’s contract claims against IBM so barring a miracle IBM will never stand trial.

It’s just what IBM had in mind when it told Novell back in 2003 that Novell had the discretion under the APA to do so although the judge finds that Novell acted “to protect its own interests and those of the open source community and…not…because of influence by IBM or any ill-will toward SCO.”

In his decision the judge wrote that “The court finds that Amendment No 2 was not intended to confirm that the Unix and UnixWare copyrights were transferred to SCO under the APA, as argued by SCO. Rather, the court finds that Novell made a conscious decision to retain the copyrights in the APA and that intent was reflected throughout the negotiating and drafting of Amendment No 2. The court finds that Amendment No 2 was only meant to confirm that SCO had the right to use the Unix technology. The court finds the testimony of Novell’s witnesses, especially Ms Amadia and Mr Tolonen, to be credible. The court finds SCO’s witnesses to be less credible for a number of reasons, including the fact that many were not directly involved in the negotiation and drafting of Amendment No 2. Additionally, as previously stated, many have a financial interest in this litigation.”

Meanwhile, Novell has filed a notice of appeal in its 2004 WordPerfect antitrust case against Microsoft after Microsoft got the thing dismissed. Any claims went along with the software to Caldera.

Posted by rhall2091 at 3:30 am

SCO Still Manages To Bite Novell in the Ass

Novell, SCO No Responses »
Apr 022010

Ah, sweet irony. On the day that Novell won against SCO on the basis of an agreement that most people (the die-hard Linux contingent excepted) think transferred IP, it lost to Microsoft on the basis of an agreement that most people (except the judge) think didn’t transfer IP, and as a topper SCO is involved in that decision too.

First you have to remember that Novell has been suing Microsoft for antitrust since 2004 for allegedly beating up on its briefly held WordPerfect and Quattro Pro acquisitions years ago figuring to collect a king’s ransom from Redmond to go along with the tidy $536 million it already got from them for settling some similar NetWare charges six years ago.

Well, on Tuesday the judge hearing that case threw out Novell’s last two remaining claims out. He decided that Novell had sold the right to sue Microsoft to – guess who – Caldera, the Utah company that changed its name to SCO, back in 1996, which, if you’ll also remember, bought DR-DOS from Novell and settled claims against Microsoft arising out of that widgetry for around $290 million on the courthouse steps.

Anyway, Judge Frederick Motz in Baltimore decided that he was wrong to let those two Novell claims go forward and that the Asset Purchase Agreement Novell signed with Caldera was unambiguous, that it didn’t just transfer claims relating to DR-DOS to Caldera but all the claims “associated directly or indirectly” with operating systems products like the applications.

Novell bought WordPerfect in 1994 when it was already in decline. Its market share went from ~50% in 1990 to less than 10% in 1996 when Novell sold it and Quattro Pro to Corel up in Canada.

Novell claimed that it was all Microsoft’s fault and that Microsoft had withheld information to run the WordPerfect word processor and the Quattro Pro spreadsheet on Windows. Microsoft, in turn, said Novell should blame its “own mismanagement and poor business decisions.” It lost a bunch of other claims against Microsoft in 2005 when Motz threw them out because it took Novell so very long to sue.

Novell, which apparently needs to practice writing clearer contracts, says it’s gonna appeal. The suit was the last of the private antitrust complaints arising from the government’s antitrust suit against Microsoft, a gravy boat that folks like Sun and IBM stuck their bread in.

Posted by rhall2091 at 7:28 am

SCO, the Fat Lady & Novell’s Slippery Grasp on the Unix Copyrights

Novell, SCO No Responses »
Apr 012010

SCO has one foot in the grave, but the sod hasn’t been thrown over it yet.

With its copyright and slander-of-title case lost to Novell, it says it still means to bring its suspended contract and unfair competition case against IBM if the judge who presided over the Novell case – and who may have been as surprised as the Novell lawyers at the verdict – decides that Novell has no business blocking it.

Back eons ago Novell stepped into the SCO v IBM lawsuit – or at least tried to – and told SCO it couldn’t sue IBM or lift IBM’s license to distribute AIX, IBM’s version of Unix.

Judge Stewart – he’s the guy who ran the copyright trial – now gets to decide whether Novell’s so-called waiver holds any water and how far it extends.

Briefs from both SCO and Novell are expected to land on his desk on April 19. He’ll have a think and then decide. There probably won’t be a hearing.

If it can cross that hurdle, SCO will still have to fight to get its Monterey charges against IBM recognized. Judge Kimball – the guy whose summary judgment awarded Novell the Unix copyrights in 2007 – barred them from the case when he wouldn’t admit SCO’s third amended complaint. SCO’s got an aging right-to-amend motion floating around out there somewhere.

Then it’s got to try to get its multibillion-dollar AIX/Dynix case, which was gutted by Magistrate Judge Brook Wells, patched back together again – it’s got a reconsideration motion pending too – otherwise it’ll have to go with the stump of a case.

Both sets of claims contend that IBM looted Unix for the sake of Linux and the AIX case includes a destruction of evidence charge that could prove highly entertaining and potentially profitable for SCO if it ever gets heard.

Anyway, Judge Kimball’s summary judgment was of course overturned by the 10th Circuit Court of Appeals last year, which is how Judge Stewart gets to make the decisions that could potentially put SCO, now older and poorer, kinda back where it was before the Novell distraction.

If the waiver ruling goes in SCO’s favor, it’s unclear who exactly would get to decide the right-to-amend and reconsideration motions, Judge Stewart or Judge Tina Campbell, who drew the IBM case when Kimball’s summary judgment was overturned. It’s possible Judge Stewart could take the IBM case because of his Novell learning curve.

Anyhow, even if Stewart does give SCO what it wants SCO’s bigger problem is simply surviving.

See, there’s the little matter of the $3 million, $3.5 million that SCO owes Novell from the money that it collected from Sun Microsystems, a sum Novell will now doubtlessly press for along with Chapter 7 liquidation. That means the scene flips back to the bankruptcy court in Delaware. If bankruptcy Judge Kevin Gross keeps SCO in what amounts to protective custody for the duration – and that’s a mighty long time – then SCO might get to pursue its IBM quest – the lawyers are all paid up – but if he doesn’t then SCO could be road kill.

Of course, Novell doesn’t have any dibs on SCO’s business (yes, Virginia, there’s still some business there) and remaining assets. The consortium of investors that just put $2 million in the company does. They would get paid first and if there’s no money left in the till then they get the assets including the IP and the right to chase SCO’s claims.

Ah, but there’s another course the lawyers could take right now – one that would drive the Linux hoards utterly nuts – and that’s to ask Judge Stewart to scotch the jury verdict on the grounds that they got it wrong and award SCO the copyrights anyhow.

And there’s another way of getting to the same place and that’s by demanding what they call in legal circles specific performance. The jury was given four if-yes-go ahead-if-no-stop-right-there questions to answer. It never got past the first one: “Did the amended Asset Purchase Agreement between Novell and the Santa Cruz Operation transfer copyrights.” The jury said no.

However, according to the testimony at the trial the copyrights were meant to transfer and – since the jury said they didn’t – SCO’s got a specific performance claim. It’s already scheduled to ask Judge Stewart, also on April 19, that they transfer now to compensate for the oversight. That’s another decision – besides the waiver business – that he reserved to himself alone in the run-up to the trial.

Whether Judge Stewart will in fact rule in SCO’s favor is another thing. But with the copyrights in hand SCO could do what it can’t do now thanks to the jury verdict and that’s demand a Linux tax from all the Linux installations out there and refill its coffers – or at least that’s the theory.

Plus ça change, plus c’est la même chose.

Of course Novell would undoubtedly appeal. Or maybe owned and operated by Elliott Associates, the hedge fund that’s trying to buy it, a less Linux-sensitive Novell offers SCO a few million gratefully accepted by SCO’s trustee Judge Kahn to go away once and for all.

Since Novell acknowledged that it was for sale when it rejected Elliott’s $2 billion bid as “inadequate,” it’s assumed to be dialing for dollars looking for other possible buyers and perhaps, if there’s any interest, cutting NDAs. At least Elliott assumes it. And Elliott has expectations of looking at the books too and possibly refining its bid. The stock market apparently expects it. Novell’s stock price is back over Elliott’s $5.75-a-share offer – and it can’t be just glee over SCO.

Posted by rhall2091 at 6:27 pm

Whither Novell?

Novell No Responses »
Mar 132010

Novell’s gone awfully quiet since last week when Elliott Associates, a New York hedge fund better known for trafficking in Peruvian debt, offered $5.75 a share to take in private.

In fact, the only peep out of it has been the constant rustle of its stock trading hands apparently in anticipation of either a sweetened offer or a white knight riding in to save it from the clutches of a known “vulture capitalist.”

From March 3 through March 11, something like 240 million shares of Novell were bought and sold. It’s only got about 300 million shares outstanding – and Elliott already owns 8.5% of the company – so that theoretically means that only around 11.5% of its shares didn’t trade.

The spike in Novell’s price has simmered down since ballooning to $6.15 last Wednesday, the day after the offer was made. It had slipped to within a nickel of Elliott’s price when the market closed Thursday, possibly because no other offer has appeared on the horizon.

No surprise there.

Bloomberg found someone “familiar with the matter” to tell it Thursday that Elliott would sell off Novell’s legacy NetWare business if it gets its hands on the company, maybe try to find a buyer for its Linux unit, repatriate the $400 million in cash Novell has offshore (despite Elliott’s stated concerns about taxes, it would seem), try to run the joint more efficiently and improve the current $239,496 ratio of sales to employee.

Bloomberg’s source said the company is overspending on employees. Guess we know what that could mean.

The source also told Bloomberg that Novell’s board is supposed to meet early next week to consider Elliott’s offer.

Bloomberg got a lot farther than we did. Novell’s spokesman didn’t return our calls and Elliott’s spokesman wouldn’t be pinned down on whether or not the two companies have been talking, a simple question to which we basically got “yes,” then “no,” then “I can’t talk about it yet.”

But darned if he didn’t keep his word and call back later to say that no Elliott hasn’t heard back from Novell since a week ago Tuesday when it acknowledged its offer; no, Elliott wasn’t acting for somebody else (although that like any discussions of the SCO suit against Novell may be over his pay grade); and that Bloomberg was wrong, wrong, wrong.

He forwarded a statement saying that the Bloomberg story was “inaccurate and erroneous” and that “Elliott wants to own the company. Elliott has no plans to sell any business units.” He said he tried to reason with Bloomberg before its story went out but the wire service wasn’t having any of it.

Like Bloomberg, Ovum, the London researcher, figures that whether or not Elliott succeeds in buying Novell, Novell is still burnt toast and “likely to end up in pieces.”

It thinks there will be a better offer but not much; that Novell’s board is likely to reject the Elliott’s bid ahead of BrainShare, which starts on March 21; and that Elliott might go directly to Novell’s shareholders.

It also figures that the only way any of the great industry lights speculated on as potential Novell saviors – everybody from Cisco, CA, Dell, Google, HP, IBM, Oracle, SAP, VMware through to Microsoft – are going to get within a 10-foot barge poll of Novell is at a rummage sale.

Heck, it even imagines that “As part of its strategy to rebuff EA’s efforts, Novell’s board may well offer to dismantle the company itself so that all profits end up in its shareholders’ pockets rather than EA’s.”

It thinks the Linux business will be the first to go with IBM the most likely buyer – presumably after Elliott deals with SCO, we might interject – since IBM lent Novell the money to buy SUSE in the first place to make sure Red Hat didn’t turn into Microsoft II and since SUSE is the preferred Linux on its mainframes.

Ovum also likes CA for Novell identity and access management portfolio, maybe even its system management stuff too though it needs more integration.

It figures Elliott could probably make a buck on Novell’s patents. Whether the same could be said for Novell’s WordPerfect suit against Microsoft remains to be seen.

Posted by rhall2091 at 6:22 pm

Jury To Decide in March Who Owns Unix

News, Novell, SCO No Responses »
Dec 032009

SCO’s case against Novell for slander of title is going to trial on March 8.

That means a Utah jury will decide who the heck owns Unix.

Novell tried like the dickens but failed to get the date pushed back to next summer during a scheduling hearing Tuesday with Judge Ted Stewart, who’ll be presiding.

If Judge Stewart didn’t already know how jury-shy Novell is, he does now.

Novell’s outside counsel Michael Jacobs first tried pleading that the trial would take three weeks not two as SCO maintained. The first open date for a two-week trial was March 8. The first open date accommodating a three-week trial was in June and Jacobs was reportedly all over that idea like, well, a June bug on a ripe fig.

When that didn’t work he tried pleading that there was an awful of work to be done and briefs to be filed beforehand and he needed time. Judge Stewart reportedly asked him what briefs he had in mind exactly since the case was fully briefed and on the brink of going to trial in August of 2007.

That was right before Judge Stewart’s predecessor Judge Dale Kimball took the decision away from a jury with his now famous summary judgment that Novell owns Unix, the decision that the 10th Circuit Court of Appeals overturned sending the case back to Utah to be heard.

Perhaps Judge Stewart was sending Jacobs a coded message not to bother filing any motions to stay. According to Groklaw, Jacobs means to reprise Novell’s bid for no special damages, i.e., no malice intended when it claimed to still own the Unix IP. He also means to take another run at the Supreme Court to see if he can get the appeals court’s decision overturned. It’s a real long shot.

Jacobs’ motion to get SCO’s case against Novell combined with SCO’s case against IBM – a thought that used to appall Novell – also looks pretty futile. Ditto his attempt to get the two cases assigned to one judge – preferably Judge Tena Campbell, who’s already drawn the IBM case.

Read between the lines here. Judge Campbell is getting close to senior status when district court judges can unload half their cases and go part-time. Judge Stewart has a reputation for getting things done, especially old cases with tortuous histories, as he’s quoted as saying about SCO.

In its attempt to get to trial ASAP cash-strapped SCO and its Chapter 11 trustee pushed back against Novell’s stay-out-of-court-as-long-as-we-can consolidation motion.

Observers are crediting SCO’s trustee Ed Cahn, himself a retired district court judge and a relatively neutral party, with helping get the court off the dime. He filed a declaration with Judge Stewart saying the case has merit and should be expedited. Joining it to the complexities of the IBM case would only confuse people, he said.

As it turns out, according to Groklaw, after some squeezing and shoving by the clerk of the court Novell got its three-week trial anyway. Now it remains to be seen whether anybody actually uses this carved-out period of time or whether we’ll see a settlement on the courthouse steps. Novell’s sudden, inexplicable desire to consolidate its case with the IBM case raises suspicions about either case ever going to a jury.

For its part Groklaw figures the date will be reset due to Novell’s motions. It’s also characterizing Judge Stewart as partial to SCO.

Posted by rhall2091 at 6:49 pm
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