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0077a 2011121 Hp Cmc Stmnt Unredacted

0077a 2011121 Hp Cmc Stmnt Unredacted

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Published by Arik Hesseldahl
HP vs Oracle. Case management statement.
HP vs Oracle. Case management statement.

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Published by: Arik Hesseldahl on Jan 31, 2012
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07/10/2013

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HP’S
 
 NOVEMBER 
 
22,
 
2011
 
CASE
 
MANAGEMENT
 
CONFERENCE
 
STATEMENT:
 
CASE
 
 NO.:
 
1-11-CV-203163
Gibson, Dunn &Crutcher LLP
GIBSON, DUNN & CRUTCHER LLPROBERT E. COOPER (SBN 35888)rcooper@gibsondunn.comSAMUEL G. LIVERSIDGE (SBN 180578)sliversidge@gibsondunn.com333 South Grand AvenueLos Angeles, CA 90071-3197Telephone: 213.229.7000Fax: 213.229.7520BARTLIT BECK HERMAN PALENCHAR & SCOTT LLPMARK E. FERGUSON (
 pro hac vice
)mark.ferguson@bartlit-beck.comSEAN W. GALLAGHER (
 pro hac vice
)sean.gallagher@bartlit-beck.com54 West Hubbard Street, Suite 300Chicago, Illinois 60654Telephone: 312.494.4400Facsimile: 312.494.4400Attorneys for Plaintiff and Cross-Defendant,HEWLETT-PACKARD COMPANYSUPERIOR COURT OF THE STATE OF CALIFORNIAFOR THE COUNTY OF SANTA CLARAHEWLETT-PACKARD COMPANY,Plaintiff,v.ORACLE CORPORATION,Defendant.CASE NO.:1-11-CV-203163Action Filed: June 15, 2011Trial Date: February 27, 2012
HEWLETT-PACKARD COMPANY’SNOVEMBER 22, 2011 CASEMANAGEMENT CONFERENCESTATEMENT
Assigned For All Purposes ToThe Honorable James P. KleinbergHearing Date: November 22, 2011Time: 10:00 a.m.Dept: 1ORACLE CORPORATION,Cross-Complainant,v.HEWLETT-PACKARD COMPANY,Cross-Defendant.
CONDITIONALLY FILED UNDER SEAL PURSUANT TO STIPULATED PROTECTIVEORDER ENTERED ON OCTOBER 17, 2011
 
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HP’S
 
 NOVEMBER 
 
22,
 
2011
 
CASE
 
MANAGEMENT
 
CONFERENCE
 
STATEMENT:
 
CASE
 
 NO.:
 
1-11-CV-203163
Gibson, Dunn &Crutcher LLP
Oracle seeks to delay the trial in this matter. Given that Oracle has undertaken a businessstrategy that is harming customers and HP’s business, in violation of Oracle’s contractualcommitments, HP does not want to delay. HP wants Oracle to honor its contractual commitmentsand to answer for its conduct as soon as possible.
1
 
A. Introductory Statement1. Oracle’s Anti-Customer Business Strategy To Leverage Its Software DominanceTo Drive Hardware Sales From Itanium To Inferior Sun Servers.
Oracle’s internal documents make clear that Oracle’s announcement in March 2011 that itwould no longer develop or support software for Itanium servers was implemented as part of acalculated business strategy to leverage Oracle’s dominance in database software to try to forceItanium customers to purchase Sun servers. Oracle’s documents reveal that its public announcementthat it was ending support for Itanium because Itanium was at an “end of life” was a pure pretext tohide Oracle’s real purpose: to take away the choice of Itanium from customers and restrict thecompetition faced by its inferior Sun servers. While Oracle styles itself a champion of customers inits CMC Statement, the reality is that Oracle is lying to the marketplace and harming competition tothe detriment of customers.Oracle knew that its hardware products were weak. As one Oracle executive wrote in 2011,“Our hardware offering is simply not strong enough to enable the channel to grow if we do not blendour offering with the software stack.” (ORCL00177574.) Oracle also knew that its SPARC/Solarisserver sales were on the decline. To compensate, Oracle implemented a series of tactics designed toundermine competition on the merits and force customers to migrate to Sun servers. These tacticsincluded, and continue to include, pricing misconduct, withholding of benchmarking scores that showthat HP server products outperform Oracle products and then offering misleading advertisements thatcapitalize on the withheld benchmarks, abusing customers on support issues, and, finally, cutting off 
1
Oracle says in its CMC Statement that HP refused to sign on to a Joint CMC Statement unlessOracle removed its explanation for the filing of its forthcoming Amended Cross-Complaint. Thisis a mischaracterization of the facts. HP refused to sign the proposed Joint CMC Statement because Oracle misrepresented the topics to be covered in the joint statement and tried to includeat the last minute arguments and evidence regarding the merits of the case. HP appreciates theCourt allowing HP additional time to file this CMC statement.
 
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HP’S
 
 NOVEMBER 
 
22,
 
2011
 
CASE
 
MANAGEMENT
 
CONFERENCE
 
STATEMENT:
 
CASE
 
 NO.:
 
1-11-CV-203163
Gibson, Dunn &Crutcher LLP
software support for Itanium, despite a clear contractual commitment that required Oracle to continueto support HP hardware platforms. A senior Oracle hardware executive confirmed Oracle’s planswith respect to the sale of Sun server products with direct and vulgar language, writing that “hp isdead” because “we have a lot up our sleeve” and “we are going to fuck hp.” (ORCL00364933.)Immediately after Oracle’s fraudulent announcement that Itanium was near its “end of life”hit the wires on March 22, 2011, Oracle exhorted its sales force to strike at HP’s base of Itaniumcustomers now that Oracle believed there was blood in the water. The day after the announcement,an Oracle executive tried to whip up Oracle’s sales force to go in for the kill with Itanium customersnow that Itanium was vulnerable:We need to make this BIG, and get out AHEAD of IBM. I want that list of accountswith Oracle on Superdome. I want [] calls from our HW Reps THIS WEEK to the top500 those customers to open a dialogue about future directions for their mission-critical Oracle workloads running on HP-UX. And I want to document outcomes.(ORCL00001531-532.) Oracle’s internal documents describe Oracle’s sales strategy based on itsItanium announcement as a competitive assault targeted at HP server customers running Oracledatabases – a “‘competitive take out’ sales play – go to HPUX customers and move them to our gear.” (ORCL00105401-403.) Oracle referred to its Itanium plan as the “HP Superdome TakeoutProgram,” “our HP attack initiative,” and “HP Away.” (ORCL0031306; ORCL00011773.)Oracle identified over 750 Itanium customers and directed its sales force to call every singleone to use the uncertainty about Itanium’s future created by Oracle’s fraudulent announcement tocoerce them into abandoning Itanium for Sun servers. On March 23, 2011, an Oracle executivewrote, “Monday the entire hardware sales force and channels team gets trained on the messages of our announcement. . . . Monday night they start calling 769 itanium customers and the top 50 VARSfor meetings explaining our announcement, talking about M and Exa series as alternatives to itanium,and offering up Insight migration workshops to customers.” (ORCL00353524-526.) Oracleinternally touted its fraudulent Itanium announcement as creating a huge sales opportunity for Oracle.On March 24, 2011, an Oracle executive wrote:Today’s Oracle announcement is a very significant milestone. The implications for our customers and our opportunities is immense. It is absolutely CRITICAL that weseize this opportunity to engage and execute. . . . To this end, at tomorrow’s Forecast

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Jack Hines added this note
I think HP will prevail, even if all Oracle claims is true. Howver, I also think that HP will have to pay for the porting of 12g and future DB systems.

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