Thursday, September 8, 2011

Odds rise again for Ellison-Page showdown in front of 'dedicated Facebooker' judge

Nothing is easy in the dispute between Oracle and Google. With all the back-and-forth over who may want to or have to participate in a last-ditch mediation effort, things may get confusing to some observers, so let me start with a high-level overview:

  • Last Friday, Judge William Alsup (the federal judge presiding over the case) stated his inclination to order "the top executive officers" of both parties to a mediation effort in front of a magistrate judge, lasting one or two full days. At the time I already interpreted "the top executive officers" as potentially meaning the CEOs -- Larry Ellison and Larry Page. He asked the parties to reply until noon yesterday with their thoughts.

  • In their replies, both parties formally welcomed the proposal but didn't appear equally committed to making mediation succeed. Oracle said that one of its two presidents, Safra Catz, who's also the Chief Financial Officer and a board member of the company, would be available, along with Thomas Kurian, Executive Vice President of Oracle Product Development. Google offered to send Andy Rubin (Android chief and Senior Vice President, Mobile) and Kent Walker (Vice President and General Counsel). Oracle formally objected to those appointments, especially to that of Rubin.

  • Today (Thursday), Judge Alsup entered an order referring the mediation effort to a magistrate judge and making a non-binding recommendation that the court order the participation of both companies' CEOs as well as the negotiators proposed by the parties.

I have uploaded Judge Alsup's order to Scribd. This is the text:

This matter is hereby REFERRED to MAGISTRATE JUDGE PAUL SINGH GREWAL for mediation. In light of the October trial date, mediation sessions should take place this month. The Court strongly recommends that Judge Grewal order Larry Ellison of Oracle and Larry Page
of Google as well as the officers identified by the parties at docket numbers 401 and 402 to attend all mediation sessions, but leaves this determination to his judgment.

The docket numbers 401 and 402 relate to Oracle's and Google's aforementioned replies to the mediation proposal.

Magistrate Judge Grewal may or may not have had some limited involvement with the Oracle v. Google case so far. His colleague Magistrate Judge Donna Ryu handles discovery in the Oracle case. He is, however, in charge of discovery for Apple v. Samsung. For example, here's one of his orders in that case.

Just last week, a couple of stockholder lawsuits were filed against Google's board, such as this one, and initially assigned to Magistrate Judge Grewal. However, Google declined to proceed before a magistrate judge. They wanted a federal judge. It's pretty normal for litigants to make this request in those cases. I see it all the time. I'm sure Magistrate Judge Grewal didn't feel personally offended by Google's request, which was granted right away.

In May,'s California section (The Recorder) reported on judges who walk a tightrope with their online presence and described, and described Magistrate Judge Grewal as "a dedicated Facebooker, friending, posting, checking his news feed". It's possible he has reduced his online presence -- or restricted access to his Facebook wall -- since that article. If you click through to the story, you can find various quotes from him on why he thinks it's important for a magistrate judge to use social media.

He will now have to decide on whether or not to adopt Judge Alsup's recommendation that the CEOs of both companies (as well as the negotiators proposed by the parties) should attend all mediation sessons. He will also take note of Oracle's objections to the appointments of Andy Rubin and Kent Walker.

By strongly recommending the attendance of both CEOs, Judge Alsup clearly shows that he believes any settlement of this case will be a huge deal. He previously said that this lawsuit could cost Google billions, and if he didn't believe at this (even more advanced) stage that there's a whole lot of money at stake, he would probably be fine with negotiators who don't have the ultimate decision-making authority (except for board approval) in their organizations.

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