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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. -- This message has been scanned for viruses and dangerous content by MailScanner, and is believed to be clean.
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