SCO vs. IBM					 Tech Insider's Review

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From: Al Petrofsky <a...@petrofsky.org>
Newsgroups: alt.os.linux.caldera
Subject: Long and short of shortened notice
cc: al
Date: 19 Feb 2010 17:19:55 -0800
Message-ID: <87r5ogputg.fsf@petrofsky.org>
Organization: The Vegetable Liberation Front
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Tomorrow I may file an "Objection of Petrofsky to Certification of
Counsel Regarding Order Vacating the Order Granting Motion of Chapter
11 Trustee to Shorten Notice and Response to Trustee's Motion For
Order (I) Authorizing Debtors' Estates to Obtain PostPetition
Financing and to Grant Security Interests and Superiority
Administrative Expense Status Pursuant to 11 U.S.C. secs. 105, 363(c),
364(c), 364(e) and 507(b); (II) Modifying the Automatic Stay Pursuant
to 11 U.S.C. sec. 362; and (III) Granting Other Relief".  See docket
No. 1060, filed February 19, 2010, in In re: SCO Group, Inc. et al.,
No. 07-11337, Bankr. D. Del.
(http://scofacts.org/nefomatic-test-SCO-Group-bankruptcy.html).

Here's an informal explanation of what's going on:

Under the local rules, the last day to file a motion to be heard on
March 5, 2010, without the need to get an order shortening time, was
February 16, if the motion were served by mail, or February 19, if the
motion were served by hand delivery.  The rules are not entirely clear
as to what other service methods are allowed and what the filing
deadline would be for motions served by other methods.  These rules
recently changed, on December 1, 2009.  If the old rules were still in
effect, there would have been three different deadlines (all of which
are different from the two deadlines under the current rules):
February 15 for motions served by mail, February 17 for those served
by overnight delivery, or February 18 for those served by hand
delivery.

In part because there is no creditors committee, all motions in these
cases must be served on a few dozen different parties.  Most of them
do not have local Delaware counsel (who are relatively easily served
by hand), and one of them isn't even in North America.  Arranging for
all of them to be served by hand would be significantly difficult and
expensive, and has never been done throughout the whole 2.4 years that
these cases have been pending.  Service by overnight mail has been
done a couple times.

Cahn filed his financing motion early on February 18, two days after
the filing deadline for motions served by mail, but one day before the
deadline for hand-delivered motions.  The plan was apparently to serve
the motion by mail, as usual.  Therefore, shortly after filing the
financing motion, the trustee also filed a motion to shorten time.  

In the shortening motion, he requested that the objection deadline be
the ordinary February 26 date.  In other words, he wanted the brunt of
his tardiness to be entirely borne by all the other parties, with his
own period in which to compose reply briefs unaffected.

The rules call for judges to rule on shortening motions "promptly
without need for a hearing", which Judge Gross did that afternoon.
Although he didn't change the part of the proposed order that stated
that the motion was "granted", he actually pretty much completely
denied the motion as to its adverse impact on parties other than the
trustee, and instead made the trustee bear the brunt of his own
tardiness.  He set the objection deadline on March 1, and left the
trustee's reply deadline (which is computed backward from the hearing
date) on March 2.

That morning, I had considered filing an objection to the shortening
motion, requesting that the Court do exactly what it did.  I didn't
write it up and file it because: (a) I didn't really have the time to
do so; (b) for all I knew, the proposed order had already been signed
and was about to be entered on the docket; and (c) I figured Judge
Gross would probably overrule the objection even if it did get to him
in time.  I was pleasantly surprised when I saw that he had dealt with
the motion entirely appropriately on his own.

At some point that afternoon, the trustee decided not to rely on
service by mail, and instead to use faster methods, which, he decided,
were equivalent under the rules to hand-delivery, and therefore he
could set an objection deadline of February 26, without the need for a
shortening order.

Unfortunately for him, by the time he filed his notice of withdrawal
of the motion for a shortening order, the Court had already "granted"
the motion, with the sua sponte modification setting the objection
deadline on March 1.  (The trustee didn't notice the order until after
he filed the withdrawal, because some problem in the court's ECF
system yesterday caused delays of up to four hours from the filing of
an item until the Notice of Electronic Filing (NEF) reached the
court's outgoing mail server.)

Today the trustee filed the certification of counsel in which he
requests an order changing the objection deadline from March 1 to
February 26.  He also filed the certificate of service, showing that
many of the parties were served only by electronic mail, facsimile, or
overnight mail.  The legal question is whether all of these are
sufficient to qualify him for the February 19 filing deadline (for
hand-delivered motions) rather than the ordinary February 16 filing
deadline for motions served by mail.

-al

--

Below are some tests to see how google groups and the other
usenet-to-web gateways for this group deal with various types of
inline URLs:

blah blah http://example.com/foo blah blah
blah blah http://example.com/foo, blah blah 
blah blah http://example.com/foo; blah blah 
blah blah http://example.com/foo. blah blah 
blah blah (http://example.com/foo). blah blah 
blah (blah http://example.com/foo). blah blah 
blah blah "http://example.com/foo". blah blah 
blah blah <http://example.com/foo>, blah blah 
blah blah <http://example.com/foo>, blah blah 
blah blah <URL:http://example.com/foo>, blah blah 

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NNTP-Posting-Date: Sun, 21 Feb 2010 17:04:22 -0600
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Newsgroups: alt.os.linux.caldera
Subject: Re: Long and short of shortened notice
References: <87r5ogputg.fsf@petrofsky.org>
From: Al Petrofsky <a...@petrofsky.org>
Date: 21 Feb 2010 15:04:20 -0800
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On Friday, in the parent message, <87r5ogp...@petrofsky.org>, I
wrote about the events that led to the "Certification of Counsel
Regarding Order Vacating the Order Granting Motion of Chapter 11
Trustee to Shorten Notice and Response to Trustee's Motion For Order
(I) Authorizing Debtors' Estates to Obtain PostPetition Financing and
to Grant Security Interests and Superiority Administrative Expense
Status Pursuant to 11 U.S.C. secs. 105, 363(c), 364(c), 364(e) and
507(b); (II) Modifying the Automatic Stay Pursuant to 11
U.S.C. sec. 362; and (III) Granting Other Relief", docket No. 1060,
filed February 19, 2010, in In re: SCO Group, Inc. (f/k/a Caldera
International, Inc), No. 07-bk-11337, Bankr. D. Del.  (see
http://scofacts.org/nefomatic-test-SCO-Group-bankruptcy.html).

I've decided not to object to the certification and the request
therein to move the objection deadline from March 1 to February 26.

As I discussed in the parent, it is clear that the rules allowed for
the underlying financing motion to be filed as late as Friday,
February 19, with an objection deadline of February 26, if the motion
were served by hand delivery.  See Bankr.D.Del. local rule 9006-1(c)
(motions may be filed and served (other than by mail) as late as 14
days before the hearing date, with an objection deadline as early as 7
days before the hearing date).

Trustee Edward Cahn's position is that no motion for shortened notice
was actually necessary, and both the motion for shortened notice and
the ruling upon it (in which Judge Gross set an objection deadline of
March 1 rather than the requested deadline of February 26) were based
on the assumption that the financing motion would be served by mail,
which would have meant that many parties would not have received
notice until after February 19.  However, because Cahn has since
served the financing motion in such a manner that all parties
presumably received it by February 19, it is now appropriate to vacate
the order that set a later objection deadline.

If we assume that Cahn really has now met the service requirements for
a February 26 objection deadline, then I think it would be reasonable
for the court to vacate the order that set a later deadline.  I also
think it would be reasonable (but I'm going to refrain from arguing
for it) for the Court to say that the later deadline came about
because the trustee filed a shortening motion that was either (a) a
pointless waste of the Court's time, if the trustee was not going to
rely on service by mail, or (b) unreasonable, if the trustee was going
to rely on service by mail (which is why the Court set a later
objection deadline than the requested one), and, therefore, because
the situation was entirely caused by the trustee's own pointlessness
and/or unreasonableness, and because moving up a previously ordered
objection deadline to a date that is less than a week away is an
extraordinary remedy that will prejudice any parties who had already
made plans based on the ordered deadline, the relief should not be
granted unless the trustee shows some extraordinary cause for it,
which he has not.

As to whether Cahn's service methods and timing were sufficient to
allow him to set a February 26 objection deadline, there are two
questions: (1) are those service methods allowable at all?; and (2)
using those service methods, was a service date of February 18 early
enough (as it would be for service by hand delivery, but would not be
for service by mail)?

The service methods Cahn used, according to his certificate of service
(dkt #1059), were: "Hand Delivery" (for 6 parties); "Electronic Mail"
(for 21 parties); "Overnight Mail" (for 9 parties); and "Facsimile"
(for 5 parties).  The only rules I can find that authorize the use of
any of these methods other than hand delivery are local rule
2002-1(b)(i) and FRCivP 5(b)(2) (which is incorporated by reference
into FrBkP 9014(b)).  The local rule is only applicable to service on
the U.S. trustee.  Civil rule 5(b)(2) requires that these methods only
be used if the served person has "consented in writing" to the use of
the method.

Any represented party may be served through its attorney, and all of
the attorneys who are registered in ECF gave written consent, in
paragraph 4 of the ECF registration form, to be served electronically
(see <http://www.deb.uscourts.gov/CMECF/cmecf_registration.pdf>, but
cf. local rule 5005-4).  As to service by fax or overnight mail, I'm
guessing that the trustee does not actually have written consent to be
served by those methods from all of the parties that he served in
those ways, but this issue would better be raised by one of them than
by me.

As to whether email, fax, and overnight service qualify as fast
methods like hand delivery (which require no extra time), or slow
methods like ordinary mail (which require three extra days), 
local rule 9006-1(c)(i) says:

   Unless the Fed. R. Bankr. P. or these Local Rules state otherwise,
   all motion papers shall be filed and served in accordance with
   Local Rule 2002-1(b) at least fourteen (14) days (and an additional
   three (3) days if service is by mail) prior to the hearing date.

This appears to support the trustee's position, in that the
parenthetical only singles out service "by mail" as requiring an
additional three days.  However, the rule is qualified by "Unless the
Fed. R. Bankr. P. ... state[s] otherwise", and FRBkP 9006(b) arguably
does state otherwise:

   When there is a right or requirement to act or undertake some
   proceedings within a prescribed period after service and that
   service is by mail or under Rule 5(b)(2)(D), (E), or (F)
   F.R.Civ.P., three days are added after the prescribed period would
   otherwise expire under Rule 9006(a)

(FRCivP 5(b)(2)(E) and (F) are what authorize (through their
incorporation into FRBkP 9014(b)) service by fax, email, or overnight
courier)

The federal rules have always treated electronic and other alternative
means of service as equivalent to mail, rather than to hand delivery,
when deciding whether to allow three extra days.  The rationale for
the federal treatment of these new-fangled methods was not so much
that people really thought that email was as slow as snail-mail, but
because "[p]roviding added time to respond will not discourage people
from asking for consent to electronic transmission, and may encourage
people to give consent.  The more who consent, the quicker will come
the improvements that will make electronic service ever more
attractive." (2001 committee note to FRCivP Rule 5 (which can be found
in 28 USC app., 2008 ed., p. 101,
<http://uscode.house.gov/pdf/2008/2008usc28a.pdf#page=101>)).


-al

----

Some more tests of plain-text-to-HTML translations (by this group's
usenet-to-web gateways) of URLs with various formatting:

<URL:http://example.com/foo>
<URL:http://example.com / foo>
<URL:http://example.com/
foo>
<http://example.com / foo>
<http://example.com/
foo>
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