By the Settlement Agreement, the Trustee has reached a settlement with IBM that resolves all of the remaining claims at issue in the Utah Litigation (defined below). The Settlement Agreement is the culmination of extensive arm’s length negotiation between the Trustee and IBM.
Under the Settlement Agreement, the Parties have agreed to resolve all disputes between them for a payment to the Trustee, on behalf of the Estates, of $14,250,000. For the reasons set forth more fully below, the Trustee submits the Settlement Agreement and the settlement with IBM are in the best interests of the Estates and creditors, are well within the range of reasonableness, and should be approved.
The proposed order would include “the release of the Estates’ claims against IBM and vice versa” (according to this PDF attributed to SCO Group and IBM uploaded to scribd.com). And one of the reasons given for the proposed settlement? “The probability of the ultimate success of the Trustee’s claims against IBM is uncertain,” according to an IBM/SCO document on Scribd.com titled Trustee’s motion: For example, succeeding on the unfair competition claims will require proving to a jury that events occurring many years ago constituted unfair competition and caused SCO harm. Even if SCO were to succeed in that effort, the amount of damages it would recover is uncertain and could be significantly less than provided by the Settlement Agreement. Such could be the case should a jury find that (1) the amount of damage SCO sustained as a result of IBM’s conduct is less than SCO has alleged, (2) SCO’s damages are limited by a $5 million damage limitation provision in the Project Monterey agreement, or (3) some or all of IBM’s Counterclaims, alleging millions of dollars in damages related to IBM’s Linux activities and alleged interference by SCO, are meritorious.
Although the Trustee believes the Estates would ultimately prevail on claims against IBM, a not insignificant risk remains that IBM could succeed with its defenses and/or Counterclaims
The U.S. Bankruptcy Court for the District of Delaware told Slashdot that the first meeting of the creditors will be held on September 22nd, 2021.