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BINGHAM McCUTCHEN LLP CHRISTOPHER B. HOCKETT (SBN 121539) GEOFFREY M. HOWARD (SBN 157468) ZACHARY J. ALINDER (SBN 209009) BREE HANN (SBN 215695) Three Embarcadero Center San Francisco, CA 94111-4067 Telephone: (415) 393-2000 Facsimile: (415) 393-2286 firstname.lastname@example.org email@example.com firstname.lastname@example.org email@example.com DORIAN DALEY (SBN 129049) JEFFREY S. ROSS (SBN 138172) 500 Oracle Parkway M/S 5op7 Redwood City, CA 94070 Telephone: (650) 506-4846 Facsimile: (650) 506-7114 firstname.lastname@example.org email@example.com
Attorneys for Plaintiffs
Oracle Corporation, Oracle USA, Inc., and Oracle International Corporation
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION
ORACLE CORPORATION, a Delaware corporation, ORACLE USA, INC., a Colorado corporation, and ORACLE INTERNATIONAL CORPORATION, a California corporation, v. Plaintiffs,
CASE NO. COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR: (1) VIOLATIONS OF THE COMPUTER FRAUD AND ABUSE ACT; (2) VIOLATIONS OF THE COMPUTER DATA ACCESS AND FRAUD ACT; (3) INTENTIONAL INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE; (4) NEGLIGENT INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE;
SAP AG, a German corporation, SAP AMERICA, INC., a Delaware corporation, TOMORROWNOW, INC., a Texas corporation, and DOES 1-50, inclusive, Defendants.
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(5) UNFAIR COMPETITION; (6) CONVERSION; (7) TRESPASS TO CHATTELS; (8) UNJUST ENRICHMENT / RESTITUTION; (9) CIVIL CONSPIRACY; (10) AIDING AND ABETTING; AND (11) AN ACCOUNTING. DEMAND FOR JURY TRIAL
Plaintiffs Oracle Corporation, Oracle USA, Inc. (“Oracle USA”), and Oracle International Corporation (“OIC”) (together “Oracle” or “Plaintiffs”) for their Complaint against Defendants SAP AG (“SAP AG”), SAP America, Inc. (“SAP America”), TomorrowNow, Inc. (“SAP TN”), and Does 1 through 50 (collectively referred to as “SAP” or “Defendants”), allege as follows based on their personal knowledge as for themselves, and on information and belief as to the acts of others: I. INTRODUCTION 1. This case is about corporate theft on a grand scale, committed by the
largest German software company – a conglomerate known as SAP. Oracle is a leading developer of database and applications software, and SAP is Oracle’s largest enterprise applications software competitor. 2. Oracle brings this lawsuit after discovering that SAP is engaged in
systematic, illegal access to – and taking from – Oracle’s computerized customer support systems. Through this scheme, SAP has stolen thousands of proprietary, copyrighted software products and other confidential materials that Oracle developed to service its own support customers. SAP gained repeated and unauthorized access, in many cases by use of pretextual customer log-in credentials, to Oracle’s proprietary, password-protected customer support website. From that website, SAP has copied and swept thousands of Oracle software products and other proprietary and confidential materials onto its own servers. As a result, SAP has compiled an illegal library of Oracle’s copyrighted software code and other materials. This storehouse of stolen Oracle intellectual property enables SAP to offer cut rate support services to 1 COMPLAINT
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customers who use Oracle software, and to attempt to lure them to SAP’s applications software platform and away from Oracle’s. Through this Complaint, Oracle seeks to stop SAP’s illegal intrusions and theft, to prevent SAP from using the materials it has illegally acquired to compete with Oracle, and to recover damages and attorneys’ fees. 3. In late November 2006, there occurred unusually heavy download activity
on Oracle’s password-protected customer support website for its PeopleSoft and J.D. Edwards (“JDE”) product lines. That website, called Customer Connection, permits licensed Oracle customers with active support agreements to download a wide array of copyrighted, proprietary software programs and other support materials. Oracle has invested billions of dollars in research, development, and engineering to create these materials, which include program updates, software updates, bug fixes, patches, custom solutions, and instructional documents – all copyrighted by Oracle – across the entire PeopleSoft and JDE family of software products (the “Software and Support Materials”). Customers who have contracted for support with Oracle have log-in credentials to access Customer Connection and download Software and Support Materials. However, Oracle’s support contracts limit customers’ access and download rights to Software and Support Materials pertaining to the customers’ licensed products. Customers have no contractual right to download Software and Support Materials relating to software programs they have not licensed from Oracle, or for which the customers did not purchase support rights. 4. The Software and Support Materials are a subset of the technical support
services that Oracle makes available to its customers that have licensed Oracle software programs and purchased the right to receive technical support services related to them. The full suite of technical support services (also known as “support” or “maintenance”) generally includes three types of offerings that Oracle, like most other enterprise software vendors, makes available to its licensed customers: (i) telephone or email access to Oracle’s support technicians regarding the operation of Oracle’s software; (ii) software program code for the customers’ licensed software programs which adds new functionality or features to the software (generally referred to as “software updates”), or that addresses errors or “bugs” in the software program (generally referred to as “software patches”); and (iii) “knowledge management” articles that 2 COMPLAINT
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help with problem solving and provide suggestions relating to the customer’s use of licensed software programs. Because of the complexity of enterprise software applications and the business environments in which they run, regular software updates and patches and knowledge management articles are critical components of a software maker’s support offering. For purposes of this case, Oracle’s claims against SAP only concern Oracle’s Software and Support Materials, and not Oracle’s provision of telephone or online assistance in response to customers’ support queries. 5. The access and download activity Oracle observed on its systems in late
November and December 2006 did not resemble the authorized, limited access to which its customers were entitled. Instead, SAP employees using the log-in credentials of Oracle customers with expired or soon-to-expire support rights had, in a matter of a few days or less, accessed and copied thousands of individual Software and Support Materials. For a significant number of these mass downloads, the users lacked any contractual right even to access, let alone copy, the Software and Support Materials. The downloads spanned every library in the Customer Connection support website. For example, using one customer’s credentials, SAP suddenly downloaded an average of over 1,800 items per day for four days straight (compared to that customer’s normal downloads averaging 20 per month). Other purported customers hit the Oracle site and harvested Software and Support Materials after they had cancelled all support with Oracle in favor of SAP TN. Moreover, these mass downloads captured Software and Support Materials that were clearly of no use to the “customers” in whose names they were taken. Indeed, the materials copied not only related to unlicensed products, but to entire Oracle product families that the customers had not licensed. 6. For example, in January 2007, a user on an SAP TN computer signed in as
Oracle customer Honeywell International, Inc., a Fortune 100 technology and manufacturing company, to access Oracle’s support system and copy literally thousands of Oracle’s Software and Support Materials in virtually every product library in every line of business. This copying went well beyond the products that Honeywell had licensed and to which it had authorized access. In other examples, users from SAP TN logged in using the credentials of recently 3 COMPLAINT
7. 8. Oracle has found many examples of similar activity. Rather. one user name connected to an SAP IP address appears to have logged in using the credentials of seven different customers in a span of just 15 days – all from SAP computers in Bryan. this user information did not match anything: it was fake. Texas IP address used to access and download Oracle’s Software and Support Materials is connected directly to SAP’s computer network. or 4 COMPLAINT . For example. and phone number) that did not match the customer at all.” Others used phony email addresses like “test@testyomama. Texas. Texas. SAP blended log-in information from multiple customers with fake information. In some cases. to gain access to Oracle’s system under false pretexts.” In other cases.. SAP employees used the log-in IDs of multiple customers. including the ones described above.000 unauthorized downloads of Software and Support Materials relating to hundreds of different software programs. like Metro Machine Corp. 9. and downloaded Software and Support Materials even after the customer had dropped its support rights with Oracle. an SAP America branch office location and home of its wholly-owned subsidiary SAP TN. Oracle to date has identified more than 10. email address. This systematic theft of Oracle’s Software and Support Materials did not originate from any actual customer location. some users logged in with the user names of “xx” “ss” “User” and “NULL. Across its entire library of Software and Support Materials in Customer Connection. In many instances. Employing these techniques. Oracle’s server logs have recorded access through this same IP address by computers labeled with SAP identifiers using SAP IP addresses. the access originated from an internet protocol (IP) address in Bryan. For example. The Bryan. SAP users effectively swept much of the contents of Oracle’s system onto SAP’s servers. These “customer users” supplied user information (such as user name. All of these customers whose IDs SAP appropriated had one critical fact in common: they were.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 departed customers. SAP TN is a company that purports to provide technical support services on certain versions of Oracle’s PeopleSoft and JDE software programs. Indeed. combined with phony user log-in information.com” and fake phone numbers such as “7777777777” and “123 456 7897.
” Another mused. Oracle had previously announced that in January 2005 it would complete its acquisition of PeopleSoft. * * In the world of enterprise software applications. Inc. is developing a ‘super set’ of applications. combining features from the PeopleSoft and JDE1 software and its CEO Larry Ellison has been vocal about his intentions to take market share away from SAP. Oracle said it has thousands of developers building the new application suite. through SAP America. called Project Fusion. SAP AG spokesman Bill Wohl vowed that SAP AG would use SAP TN to “keep the pressure on 1 “JDE” refers to J. 1 ranked SAP. One industry analyst stated that. Edwards World Solutions. consulting. and support. SAP’s own statements confirmed it. SAP apparently has now warehoused an extensive library of Oracle’s proprietary. (b) consulting relating to the implementation and operation of the software. As explained below. * 11. “Oracle Corp. “After the acquisition of PeopleSoft earlier this year. SAP AG’s hasty acquisition of SAP TN was widely perceived as a response to the new competitive threat from Oracle. a software company acquired by PeopleSoft. aimed at taking market share from No. increasing Oracle’s potency as a competitor to SAP AG for enterprise applications software. Oracle officially became a player on SAP’s turf. this theft appears to be an essential – and illegal – part of SAP’s competitive strategy against Oracle. Industry observers noted this fundamental shift in the competitive landscape. an independent software support company founded by former PeopleSoft software engineers. As a result of this illegal activity. Not by coincidence. new customers of SAP TN – SAP AG’s and SAP America’s software support subsidiary whose sole purpose is to compete with Oracle. copyrighted Software and Support Materials. revenue comes from three basic activities: (a) license of the underlying software. developers. SAP AG acquired SAP TN. and (c) support contracts to keep the software updated and upgraded.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 were just about to become.” 13. and support technicians. 10. in 2003. 12. In January 2005. 5 COMPLAINT .D.
14. Publicly.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Oracle” by exploiting legacy PeopleSoft customers’ perceived unease about Oracle’s commitment to support legacy PeopleSoft software. It certainly did not match Oracle’s investment in development resources. by way of example. SAP appeared to focus more on growing the SAP TN sales force rather than investing in or expanding SAP TN’s tiny development team.” But win at what cost? SAP appears to have taken a short cut to equip itself to support Oracle’s software programs at half Oracle’s price. Nevertheless. industry observers deemed the “Safe Passage” program “measurably more aggressive. 15. the . much less the 50% discount promoted by SAP. committed to throw “a lot of additional resources” behind SAP TN (which consisted of only 37 employees in total). As reported in industry publications. SAP TN did not appear to have the development capability to meet the support commitments advertised in the “Safe Passage” brochures at any price. These facts raised questions about how SAP could offer the type of comprehensive technical support services on Oracle programs that customers of enterprise applications typically require. with indications that this number may go significantly higher if traced further back in time.” and a sign that “SAP has taken the gloves off. Bill McDermott. Indeed. · A systematic pattern of “sweeping” Oracle’s Customer Connection support website from SAP TN servers just days before. SAP America’s CEO.” In connection with the SAP TN acquisition. or even come close to it.” Although SAP America President and CEO. Bill McDermott. a program aimed at siphoning off valuable software maintenance revenue from Oracle and persuading Oracle customers to switch software products [to SAP]. explicitly designed to transition customers away from Oracle products and onto the SAP software platform. crowed “There’s nothing that I love more than to win. SAP advertised this strategy as its “Safe Passage” program.000 illicit downloads from Customer Connection between September 2006 and January 2007. the 6 COMPLAINT SAP’s unlawful copying and theft includes. or the day of. SAP stole much of the Software and Support Materials directly from Oracle. following: · More than 10. SAP TN’s services “form[ed] the basis of [SAP AG’s] Safe Passage initiative.
in the purported name of customers that had never licensed those products and had no legal access to them. and theft of. and to attempt to convert these customers to SAP software applications. expiration of a new SAP TN customer’s support contract with Oracle. Oracle also has concerns that SAP may have enhanced or improved its own software applications offerings using information gleaned from Oracle’s Software and Support Materials. clearly-marked internal proprietary Oracle support documents not available even to licensed. These illegal business practices threaten to cause irreparable harm to Oracle. the indiscriminate. In short. to try to “keep the pressure on Oracle. Oracle has no adequate remedy at law for the harm threatened and caused by these acts. 7 COMPLAINT . and its customers. · On multiple occasions. unlawful. wholesale copying of vast libraries of available Software and Support Materials from Oracle’s Customer Connection support website through downloads too rapid to permit any real-time use of the downloaded Software and Support Material. authorized customers or through normal access to Oracle’s Customer Connection system. Through its illegitimate and illegal business practices.” SAP has been engaged in a systematic program of unfair. SAP has taken Oracle’s Software and Support Materials and apparently used them to insinuate itself into Oracle’s customer base. and deceptive business practices that continues to this day. its many employees.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16. · The improper access to. · Accessing and downloading Software and Support Materials across multiple product lines in multiple lines of business available on the Customer Connection support website. or in some cases on behalf of former Oracle customers with no access rights to Oracle’s Software and Support Materials whatsoever.
Oracle USA is the successor to PeopleSoft USA. Oracle Corporation develops and licenses database and applications software programs and provides related services around the world. State of California. SAP TN is a Texas corporation with its principal place of business in Bryan. 20. 21. (“PeopleSoft”) and JDE. 19.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. County of San Mateo. SAP America is a Delaware corporation with its principal place of SAP AG is a German corporation with its principal place of business in business in Newtown Square. Germany. 8 COMPLAINT . SAP America is a wholly-owned subsidiary of SAP AG. Texas. 22. Oracle USA develops and licenses database and applications software programs and provides related services. THE PARTIES 17. Oracle Corporation is a Delaware corporation with its principal place of business in Redwood City. State of California. with its only place of business in Redwood City. Walldorf. Oracle USA is a Colorado corporation duly authorized to do business in the State of California. Pennsylvania. OIC is the owner of the copyrights at issue in this action. State of California. OIC is a California corporation duly authorized to do business in the State of California. County of San Mateo. County of San Mateo. Directly and through its subsidiaries. SAP TN is a wholly-owned subsidiary of SAP America.. Oracle Corporation and Oracle USA are authorized to license to end users the copyrighted computer software programs and other works at issue in this action. The corporate relationship of the three named defendants is set forth in the chart below. with its principal place of business in Redwood City. Oracle Corporation and Oracle USA are the licensees of the copyrights at issue in this action. 18. Inc. 23.
SAP AG negotiates and enters into software license and support agreements directly within the United States and. SAP AG also holds an annual meeting of its Board of Directors in Palo Alto. each of the Defendants. or co-conspirator of the others. and finances the sales and promotional activities of both SAP America and SAP TN throughout the United States and in California. corporation. promote. partner. and specifically this judicial district. had full knowledge of and gave substantial 9 COMPLAINT .S. California. SAP AG had both the right and the authority to control the actions of both corporations. or otherwise. and therefore sues these defendants by such fictitious names. subsidiary. 27. By way of example only. was the agent. servant. whether individual. joint venturer. including Does 1 through 50.S. through its 100% ownership of SAP TN. alter ego. Oracle will amend this Complaint to allege their true names and capacities when ascertained. Defendants all are doing business in and/or have directed their activities at California. representative. inclusive. SAP America had both the right and authority to control the actions of SAP TN. unincorporated association. SAP America and SAP TN advertise. specifically in this judicial district. at all material times.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24. license. 25. parent. At all material times. SAP AG (German Parent Corporation) SAP America (Wholly-owned U. Subsidiary) Oracle is currently unaware of the true names and capacities of Does 1 through 50. service. employee. affiliate. partnership. sell. and support customers in California and in this judicial district. through its 100% ownership of both SAP America and SAP TN. Subsidiary) SAP TN (Wholly-owned U. 26. Similarly. At all material times. negotiates certain software-related contracts directly with Oracle that contain provisions by which SAP AG consents to the jurisdiction of California courts and the application of California law.
S.D.. JURISDICTION 28. This Court has supplemental subject matter jurisdiction over the pendent state law claims under 28 U. § 1367 because these claims are so related to Oracle’s claims under federal law that they form part of the same case or controversy and derive from a common nucleus of operative facts. each was acting within the scope of such agency. and the Court will have subjectmatter jurisdiction over those claims pursuant to 28 U. IV. because a substantial part of the events giving rise to the dispute occurred in this district. VI. III.C. FACTUAL ALLEGATIONS A.S. Oracle’s Software and Support Materials 32. or conspiracy.C. § 1030(g) and 28 U. and the first to receive J. 3-2 (c) and (d). §§ 101.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 assistance to the alleged activities. § 1391. service. Oracle is the world’s largest enterprise software company.C.C. INTRADISTRICT ASSIGNMENT 31.C. affiliation. § 1338. and in doing the things alleged. pursuant to 28 U. Assignment is proper in this division under Civil L. Power & Associates’ global certification for outstanding service and support based 10 COMPLAINT . In addition.S. and each is legally responsible for the acts and omissions of the others. a substantial part of the property that is the subject of the action is situated in this district. employment. 29. because a substantial part of the events giving rise to the claims occurred in San Mateo County and a substantial part of the property that is the subject of the action is situated in San Mateo County. V. Oracle’s first cause of action arises under the Computer Fraud and Abuse Act. § 1331.S. and the Court has personal jurisdiction over each of the parties as alleged throughout this Complaint.S. 18 U. Venue in this district is appropriate. 17 U.S. §§ 1030 et seq. VENUE 30.C. et seq. representation. when the relevant copyright registrations issue. Oracle will seek to amend this Complaint to add claims for copyright infringement under the Copyright Act. joint venture.S. partnership.C.. and this Court has subject-matter jurisdiction over this action pursuant to 18 U.R.
These terms notify the user that the software available to download from Oracle is Oracle’s copyrighted material. agree to additional legal restrictions.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JDEdwards and/or its affiliates or suppliers.” To download a SAR. Any reproduction or redistribution of the Software not in accordance with the License Agreement is expressly prohibited. WITHOUT LIMITING THE FOREGOING. The Software is made available for downloading solely for use by licensed end users according to the License Agreement and any reproduction or redistribution of the Software not in accordance with the License Agreement is expressly prohibited. The Software is part of the Licensed Products under the License Agreement and may only be downloaded if a valid License Agreement is in place between you and Oracle / PeopleSoft / JDEdwards. the user must click on a button indicating that it accepts these terms. 42. such as a Software Application Request (“SAR”) through the SAR Search Web Application. The terms further provide that the “software is part of the Licensed Products under the License Agreement” and “is made available for downloading solely for use by licensed end users according to the License Agreement. product or upgrade announcements. The Legal Download Agreement further restricts use of documents downloaded from the website: Permission to use Documents (such as white papers. 13 COMPLAINT . Use for any other purpose is expressly prohibited. software action requests. COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. (2) use of such Documents from this Server is for informational and non-commercial or personal use only and will not be copied or posted on any network computer or broadcast in any media. All Software is confidential information of Oracle / PeopleSoft / JDEdwards and its use and distribution is governed by the terms of the software license agreement that is in effect between you and Oracle / PeopleSoft / JDEdwards (“License Agreement”). datasheets and FAQs) from this server (“Server”) is granted. and (3) no modifications of any Documents are made. 41. In addition. provided that (1) the below copyright notice appears in all copies and that both the copyright notice and this permission notice appear. press releases. users accessing specific materials.
SAP AG CEO Henning Kagermann claimed that even with PeopleSoft. 2005. 46. 2004 at the trial on the Department of Justice’s unsuccessful effort to block Oracle’s acquisition of PeopleSoft. 14 COMPLAINT . Oracle would “not [be] a competitor which could really hurt us. he even claimed to wish Oracle “good luck” in competing with SAP AG. As SAP AG reeled. As SAP America’s Vice President of Operations. SAP AG instead considered how to undermine Oracle. these same products. at its headquarters with more than 48. Rather than improve its own products and offerings. But SAP AG had no answer for the business proposition the new Oracle offered. size. or intellectual property rights to. 44. 45. broader product line of enterprise applications software programs to compete against SAP AG. On January 7. the combination revitalized Oracle overnight as a competitor in the business software applications business. Oracle launched the newly-united company and unveiled. Not only do many SAP AG customers use Oracle’s superior database software programs.” After the merger. and geographic and product scope. One way was to hit at Oracle’s customer base – and potentially increase its own – by acquiring and bankrolling a company that claimed the ability to compete with Oracle support and maintenance services on Oracle’s own software products.000 people joining by Webcast and phone. events unfolded at a rapid pace: eleven days after its announcement. SAP AG’s top executives publicly downplayed the threat that a combined Oracle and PeopleSoft entity would pose to its competitive position for business software applications. but now Oracle offered a deeper. SAP AG suddenly found itself in a far different competitive environment than the one in which it had grown comfortable. despite not owning any of the software code for.000-strong combined workforce of Oracle and PeopleSoft would provide unparalleled innovation and support to 23. Oracle Threatens To Unseat SAP 43. Oracle completed its acquisition of PeopleSoft to emerge as the second-largest provider of business software applications in the world and the first to rival SAP AG in market share.000 business applications software customers throughout the world. how the nearly 50. testified on June 23. Richard Knowles.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B.
it instead focuses on simply keeping the software up and running for an annual fee. however.” Aligning with SAP AG made little sense for SAP TN. but – with the Oracle/PeopleSoft 15 COMPLAINT . As described in a glossy spread in a leading industry publication. SAP TN 47. SAP AG has refused to disclose the terms of its SAP TN purchase. SAP AG proposed to buy SAP TN outright and make it a wholly-owned – and wholly-beholden – subsidiary. often outdated. SAP AG bought “another arrow in its quiver to hunt after Oracle’s customers. SAP TN claimed that it could cut customer maintenance and support bills in half and give customers a reprieve from software upgrade cycles by allowing customers to remain on older. As one industry observer put it. SAP AG’s “front man for SAP AG’s mergers and acquisitions strategy. It claimed to compete with PeopleSoft. and to use SAP TN to do it. JDE. SAP TN promised to offer such cheap support “because it is not investing millions of dollars in research and development for future versions of the software. Texas and founded by former PeopleSoft employees. In December 2004. by providing low-cost maintenance and support services to PeopleSoft and JDE customers running assorted versions of these software programs.” D. just weeks before Oracle would close the PeopleSoft acquisition. As one industry journalist explained. SAP Responds To Oracle Competition With Its “Safe Passage” Scheme 48. Oracle. versions of PeopleSoft or JDE software rather than moving to later versions by implementing upgrades that the customers would receive by paying for support services from the software vendors themselves. SAP TN was a small software services company.” 49. headquartered in Bryan. SAP TN president Andrew Nelson got “the magic phone call” from Jim Mackey. So SAP AG had to make the price right. Acquiring SAP TN was not a mere investment by SAP AG. in December 2004. and later. because to the extent SAP AG successfully undermined Oracle by having its customers move from Oracle’s software to SAP AG’s software.” Mackey made Nelson an offer “he couldn’t refuse. SAP TN would eventually lose its customer base. To retain full control over every detail of its scheme to lure away customers from Oracle.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. but a calculated competitive move.
As SAP AG Managing Director Alan Sedghi admitted. Andrew Nelson. to lure the support business over. identified SAP TN as instrumental to the parent company’s “Safe Passage” program. in connection with converting Oracle customers to SAP support (via SAP TN). SAP AG’s top executives unveiled SAP AG’s acquisition of SAP TN as the centerpiece of its new “Safe Passage” scheme. SAP would offer cut-rate pricing combined with the promise of essentially unlimited future support to former PeopleSoft and JDE support customers. publicly indicating that SAP TN was authorized and intended to implement SAP AG’s goals. 52. stated. in barely a month.” The Senior Vice President and Chief Operating Officer of SAP Asia Pacific. “We're owned by SAP. After the acquisition. SAP would aggressively campaign to migrate those customers to an SAP enterprise software platform. Colin Sampson. In April 2005. We want them to be successful. SAP TN’s new parent companies directed it to begin to implement a two-phase plan to increase SAP’s enterprise application market share.” A month later.” 16 COMPLAINT . SAP TN agreed to the deal and cast its lot with SAP AG.” 51. The CEOs stated the proposition more bluntly. 2005. publicly vowed to bankroll this effort to undermine Oracle by putting “a lot of additional resources into TomorrowNow. admitted that the SAP TN acquisition was “an integral part” of SAP’s Safe Passage program. SAP America CEO Bill McDermott claimed “The SAP Safe Passage offering gives companies an affordable way to protect their current investments. First. SAP AG CEO Henning Kagermann confirmed: “We worked with [SAP TN] to very quickly set up a comprehensive program for SAP customers running PeopleSoft and JD Edwards solutions. On January 19.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 deal about to close – the “magic phone call” conveyed terms rich enough that. at the SAP AG annual meeting. Bill McDermott. ease integration with SAP NetWeaver(TM) and begin the process of innovating their businesses today. Henning Kagermann. SAP AG’s CEO. SAP America’s CEO.” And SAP TN certainly knew its role was to achieve SAP AG’s ends: as SAP TN’s CEO. 50. Second. SAP AG would try to use SAP TN as a means of “speeding-up” the migration of PeopleSoft and JDE users to SAP platforms. which in turn was part of SAP’s “ongoing strategy to compete with Oracle.
” SAP TN’s website confirms its acceptance and undertaking of the SAP-controlled Safe Passage program: “TomorrowNow can also provide our support services as part of the SAP Safe Passage Program. As reflected on SAP AG’s website: “SAP offers Safe Passage for PeopleSoft. offering significantly lower cost maintenance alternatives to Oracle customers running PSFT/JDE solutions” through 70. and Siebel customers – If Oracle’s options have you worried. SAP AG offered maintenance support through SAP TN.000 direct mail solicitations to Oracle customers. SAP provides solutions.” 54.” and elsewhere says that “Safe Passage maintenance and support are delivered worldwide through TomorrowNow. It deployed its salespeople to contact potential customers and push them to switch to SAP TN’s services. To implement Phase Two of its plan (luring Oracle customers to the SAP enterprise software platform). SAP AG did not simply sit back and leave the recruiting of potential Safe Passage customers to SAP TN’s sales force. JD Edwards. it took a hands-on approach. quality support from Oracle.” To exploit the fear it intended to create.” (emphasis supplied) SAP America’s website promises that “SAP and TomorrowNow can cut your maintenance costs by as much as 50% through 2015. Instead. Beginning in January 2005. SAP AG’s “second wave” included “an intensive customer recruitment campaign. albeit unfounded. the SAP AG sales personnel would pressure the customers to drop Oracle products outright in favor of SAP AG’s suite. officially “bundled” with SAP AG enterprise software as a centerpiece of the Safe Passage program. consider another option: SAP. 55. SAP implemented Phase One immediately. 17 COMPLAINT . If customers declined to convert to SAP TN. technology and maintenance services. These lower cost alternatives advertised by SAP AG were to come directly through SAP TN. An April 2005 SAP AG press release apparently aimed to increase perceived doubt among Oracle customers by announcing a “second wave” of “Safe Passage. PeopleSoft and JDE customer uncertainty about the prospects for long-term. To give teeth to these commingled sales efforts.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 53. SAP sales representatives unleashed a torrent of marketing materials designed to exacerbate and leverage perceived.
2005 announcement that it would acquire Siebel Systems. In a July 2006 earnings call. that it will offer technical support for more of rival software maker Oracle Corp. By July 2006. round the clock Siebel code support within a few weeks of Oracle’s acquisition announcement remained a mystery. confirmed that SAP intended to use the Siebel acquisition as another opportunity to lure Oracle customers to SAP stating that SAP is “not distracted by the challenges of integrating multiple code bases. and which it claimed “offers companies SAP solutions. SAP AG’s President of Customer Solutions and Operations.com after Oracle’s announcement of its impending Siebel acquisition. As reported on Forbes. as Oracle continued to take market share and expand its product offerings. including apparently instantaneous round the clock support from SAP TN – whose engineers at that time presumably had spent virtually no time to develop Siebel support software products. “SAP AG plans to announce . SAP AG continued to tout the success of Safe Passage.” How SAP could offer instantaneous. technology. In October 2005.” including because SAP AG “extended the program in order to offer it as well to Siebel 18 COMPLAINT . Henning Kagermann. companies and corporate cultures. SAP America President and CEO. boasted that Safe Passage “continues to do really well.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 56. SAP AG’s CEO. By March 2006.’s own products [the Siebel products] for a far cheaper price. SAP grew more desperate. including through its September 12. the program it implemented partly through SAP TN. Léo Apotheker. 58. Bill McDermott. At the same time. curiously. promised SAP AG would use SAP TN and the Safe Passage program to “fight for” more customers. maintenance services. investment protection and a clear road map to the next generation of business software. However. . SAP executives touted the Safe Passage program’s limited success in its first year.” SAP’s “cheaper price” (referred to elsewhere as “cut rate” support) continued at “50 cents on the dollar for maintenance fees. SAP AG boasted in a press release that more than 200 customers had signed up for Safe Passage. SAP AG CEO Henning Kagermann conceded that SAP had lost as much as 2% market share to Oracle. .” 57. SAP announced it would extend its Safe Passage program to Siebel customers.” but its services were expanded to support more Oracle product lines and a wider range of customers. and more aggressive.
optimally functioning Oracle software. by comparison. The SAP Solution: Stolen Passage 1. A Deal Too Good To Be True 59. and other labor-intensive support items that a customer would need to maintain useful.” “fixes for serious issues.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 customers.000 software and support engineers to create and help implement the code fixes. F. Although SAP put a brave face on its ability to compete with the increasingly potent Oracle applications offerings. It was not clear how SAP TN could offer. simply did not add up. bug fixes. as it did on its website and its other materials. Oracle Finds A Suspicious Pattern To analyze and improve on its industry leading support services. The economics. Oracle has now solved this puzzle. patches. even after having expanded its ranks to 150 employees. “customized ongoing tax and regulatory updates. 60. most remarkably. and updates that comprise the advanced support services required by Oracle’s licensed customers.” E. SAP unlawfully accessed and copied Oracle’s Software and Support Materials.” and. 62. SAP continued to offer this comprehensive support to hundreds of customers at the “cut rate” of 50 cents on the dollar. patches. “30-minute response time. 24x7x365” on software programs for which it had no intellectual property rights. could actually develop and offer the hundreds of regulatory updates. and in conjunction with opening new SAP TN offices around the world. maintains a development force of more than 15. Apotheker claimed that SAP now had “a global network of [SAP TN] capabilities” – enough to “gain significant traction. without infringing on Oracle’s intellectual property. To compound the puzzle. and the logic.” “full upgrade script support. Oracle.” By extending the Safe Passage program to Siebel customers. Oracle asks each customer searching for a solution on Oracle’s Customer Connection website to click on a button after each search to indicate whether or not a particular search result helped solve the 19 COMPLAINT . and purported to add full support for an entirely different product line – Siebel – with a wave of its hand. some industry analysts wondered whether a small company like SAP TN. 61. To stave off the mounting competitive threat from Oracle.
In late 2006. 63. Oracle also discovered that the downloaded Software and Support Materials included internal documents not available even to licensed customers and not available through normal. to take a copy of them all. the support system responds by offering the customer further options.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 customer’s problem. these click patterns showed that the users had employed an automated process to move with lightning speed through the entire library of Software and Support Materials on the Customer Connection website. 64. including dozens. and Oracle discovered that each response – each answer by users pretending to be the customer – occurred in a matter of seconds or less. If the customer selects the “No. In the course of this investigation. 20 COMPLAINT . continue search” option. hundreds. would access Oracle’s system and download large quantities of Software and Support Materials. continue search” option. in the month before a customer’s Oracle support expired. over and over again. Oracle soon discovered that many of these “customers” had taken massive quantities of Software and Support Materials beyond their license rights. authorized use of Customer Connection. Oracle noticed huge. unexplained spikes in the number of customers on the online support website who had clicked the “No. employing the customer’s log-in credentials. Instead. These clicks numbered in the thousands for several customers. Frequently. Given the extreme speed at which the activity occurred. Some of these apparent customer users even downloaded materials after their contractual support rights had expired. 65. apparently. Indeed. Oracle Discovers The SAP Link Oracle embarked on a time-consuming and costly investigation to assess the damage done to its customer response database and fully understand the sources of the unauthorized downloads. or thousands of products beyond the scope of the specific customer’s licensed products and permitted access. with the aim of continually improving the support system for customers. Oracle regularly compiles this data to assess whether its system helped customers resolve their support issues. 2. a user purporting to be that customer. Oracle discovered a pattern. And. these clicks could not reflect real responses from any human customers actually reading the solutions they had accessed.
relicense. appear to have applied their familiarity with the Customer Connection website to directly participate in and perfect the illegal 22 COMPLAINT . (5) Nigel Pullan. SAP TN’s management. Global PeopleSoft Support. or Oracle. V.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70.P. sublicense. · Not to directly or indirectly. including: (1) Andrew Nelson. · That the Materials on the support website are confidential information subject to existing confidentiality agreements. Global J. V. distribute. such as Wade Walden. North American Sales. In addition. who is reflected as the person performing many of the downloads at issue. for third party use. or third party training. disclose. JDE. SAP TN has intimate familiarity with these important restrictions and conditions relating to Oracle’s Software and Support Materials. rent. · That the customer username and password may only be distributed to persons in the customer’s organization who have a legitimate business purpose for accessing the materials contained on the support server in furtherance of the customer’s relationship with Oracle. and a significant number of its employees. International Sales. use. V. Of SAP TN’s tenmember management team. V. · That the customer username and password are for the customer’s sole use in accessing this support server.P. former PeopleSoft employees who work for SAP. V. formerly worked at PeopleSoft and JDE. or lease the Software or Documentation. · Not to access the customer support system if it is not the customer’s authorized and designated Oracle technical support contact. Quality. President and CEO. and (6) Shelley Nelson. (3) Laura Sweetman. Edwards Support.D.P.P. or any portion thereof. six list prior employment experience with PeopleSoft. (4) Mel Gadd. · Not to use the Materials on the support website except in support of the customer’s authorized use of the Oracle Programs for which the customer holds a supported license from Oracle. (2) Bob Geib.P.
and Yazaki North America. Specific Examples Of SAP TN’s Unlawful Customer Downloads SAP TN’s improper access to. SAP TN’s acts violated Oracle’s exclusive rights to use.A. Bear. Inc. Stora Enso. Helzberg Diamonds. Texas Association of School Boards. Abbott Laboratories. reproduce. S. Stearns & Co. Inc. Distribution & Auto Service... Merck & Co.S. display. With literally thousands of software programs available for licensing. Oracle does not typically obtain copyright registrations on all programs or related Software and Support Materials as it generally does not find itself in the position of having to enforce its copyrights through litigation to stop conduct constituting an intentional infringement of Oracle’s rights. Caterpillar Elphinstone. Mortice Kern Systems. create derivative works.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 support only for products that a company has licensed. AbitibiConsolidated. Berri Limited. Smithfield Foods. B. to comprehensively detail here.. Fuelserv Limited. and in conscious disregard of Oracle’s protected intellectual property and the integrity of its computer systems. Interbrew UK. The Software and Support Materials that SAP TN downloaded from Oracle’s systems also included numerous works that are protected under the Federal Copyright Laws.C. Herbert Waldman.S. 75.C. § 506.. Ronis. Oracle’s Customer Connection website is too pervasive. and therefore committed its theft knowingly and intentionally. 74. §§ 101 et seq. SAP TN reviewed and agreed to the terms and conditions on Oracle’s support website before proceeding. National Manufacturing. Such acts constitute copyright infringement under 17 U. 4... offer for sale. 17 U. Oracle will amend its Complaint to add further copyright allegations and causes of action when the registrations for these copyrights issue from the United States Copyright Office. Metro Machine Corp. Oracle has uncovered unlicensed downloads linked to SAP TN on behalf of numerous customers. SPX Corporation. Grupo Costamex. Accordingly.S. publish. OCE Technologies. NGC Management Limited.. Laird Plastics. and covers too many individual violations. and distribute these works. Border Foods. including without limitation. VSM Group AB. Honeywell International. § 501 and also willful and intentional copyright infringement under 17 U. and impose strict confidentiality requirements.V.C. By way of example 24 COMPLAINT . and taking from.
Honeywell. Oracle sets forth below illustrative instances of SAP TN’s illegal conduct regarding a few of its customers. users purporting to be “Merck” logged into the Oracle support system and downloaded over 9. In the approximately three and a half year period before Honeywell switched to SAP TN. (“Merck”). Inc. But.000 distinct Software and Support Materials for JDE software. “Honeywell” downloaded over 450 distinct unlicensed solutions on January 16. a user employing Honeywell’s log-in ID downloaded over 7. Users logging into Oracle’s support system with Merck’s credentials continued to download Software and Support Materials into March 2007. Then. Over 2.000 Software and Support Materials in less than two weeks in January 2007. 25 COMPLAINT . 2007 and nearly 400 more the next day. 2007. after switching to SAP TN. one of the largest pharmaceutical companies in the world. Honeywell International (“Honeywell”) is listed on SAP TN’s website as a client. These downloads spanned virtually every library in every line of business – far beyond the products to which Honeywell had authorized access as an Oracle customer. Honeywell used and licensed PeopleSoft software applications.000 of these downloads related to JDE software products for which Merck had no license. licenses and receives support for many Oracle software products. it averaged just over 20 downloads of Software and Support Materials per month. Merck. 77. In one specific library containing solutions for Enterprise One software. the unauthorized downloads did not stop there.000 of the Software and Support Materials taken in this period were solutions that Honeywell was not licensed to take at all. In the three months prior to that date. This unlawful downloading even stretched across product families. More than 5. 76. Many of these “Merck” downloads came directly from an IP address in Bryan. Oracle subsequently connected many of the illegal downloads to an SAP TN IP address and to SAP TN’s employee. Wade Walden – a former PeopleSoft employee now employed by SAP. but Oracle discovered users downloading JDE products with Honeywell’s credentials. Merck’s support rights for its JDE software products expired on January 1. during which “Honeywell” was downloading almost 1800 solutions per day.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of the nature and extent of SAP’s theft. Most of these excessive downloads came during the course of four days. Merck & Company.
or other right to access and download these Software and Support Materials.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Texas that belongs to SAP TN. false user names) and downloaded over 12. and some were traced to a computer with SAP TN’s initials in the title.” Similar to the other customer examples. Canadian Payroll. users employing OCE’s credentials downloaded a large number of Oracle products relating to US Payroll. including specifically to a computer with SAP TN’s initials in the title. Like the other companies. authorization.000 distinct Software and Support Materials. SAP TN users logged into Oracle’s support system using OCE’s credentials (and. these illegal downloads are associated with the same IP address belonging to SAP TN in Bryan. and Real Estate Management – none of which make sense coming from a European customer in support of its European business. using names such as “xx” “ss” and “NULL.000 distinct items for which OCE had no license. since OCE does not run many of the software programs to which these downloads relate.” In many cases. 78.” “9999999999. and neither OCE nor SAP TN have any license. 26 COMPLAINT . OCE-Technologies B. From December of 2006 to January of 2007. “TNL-02. Texas.000-plus unlicensed Software and Support Materials from Oracle. These downloads included over 3.V. in some cases. many of these “OCE” users entered phony identification information. OCE.” and even “xxx xxx xxxx. authorization or other right to access and download the 5. “TN-DL03. (“OCE”) is located in the Netherlands and appears as a customer on SAP TN’s website. In the months leading up to the expiration of OCE’s support rights for its Oracle products. Homebuilder Management.” Neither Merck nor SAP TN had any license.” This systematic sweep of products across numerous licensed and unlicensed Oracle product lines and libraries dramatically exceeded the access for which OCE (and SAP TN acting on its behalf) had any right or authority.” and phone numbers such as “4444444444” and “999 999 9999. such as the name “user” and phone numbers such as “123 456 7897. and could serve no legitimate or lawful business purpose. There is little chance that SAP TN intended OCE as the beneficiary of these massive sweeps. SAP TN users employed fake identification information to download the Software and Support Materials.
users purporting to represent Metro Machine logged onto Oracle’s support servers and downloaded nearly 6. Metro Machine. SAP TN now claims to have delivered thousands of fixes and more than 800 tax and regulatory updates to Oracle’s former customers. between October and December 2006. Not coincidentally. SPX Corporation (“SPX”) dropped all Oracle support on December 10. illegally downloaded thousands of fixes and updates from Oracle’s restricted customer support website. Then. For the nine month period prior to October 2006.000 distinct Oracle Software and Support Materials (far more than SPX could legitimately access or use). originated from the same IP address belonging to SAP TN. Over 300 distinct downloads just on November 30. and some were traced to a computer with SAP TN’s initials in the title. In some cases. 2007 and switched to SAP TN. G. like the others. In addition.” 80. SAP AG and SAP America directed this 27 COMPLAINT .700 distinct Software and Support Materials for which SPX had no license. at SAP AG’s and SAP America’s direction. These SPX downloads included over 1. SPX. Metro Machine Corp.” Many of these SPX downloads. In the month before Metro Machine dropped its support rights with Oracle.000 distinct Software and Support Materials. as reflected on SAP TN’s website. these users logged in using SPX credentials. SAP TN. but used fake identification information like the name “NULL” and phone numbers like “7777777777” and “999 999 9999. “tn-wts01. users purporting to represent SPX accessed and downloaded over 8. (“Metro Machine”) dropped all Oracle support effective on January 1.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 79. users logging into Oracle’s support system with Metro Machine’s credentials continued to download Software and Support Materials into March 2007. 2006 were Software and Support Materials related to unlicensed Payroll software. SPX averaged approximately eleven downloads per month from Oracle’s support system. listed on its website. 2006 and became an SAP TN customer. Oracle has traced these illegal and unauthorized downloads to the same SAP TN IP address employed for the Honeywell downloads described above. SAP Adds The Ill-Gotten Gains To Its Coffers 81. Nearly 400 of those downloads related to software programs that Metro Machine had not licensed from Oracle.
83. without authorization or by exceeding authorized access to such a computer. Defendants have violated the Computer Fraud and Abuse Act. information. SAP has illegally converted Oracle’s former.S.C. and prospective customers and the associated license and support revenue to artificially inflate its market share. 18 U. trespass on Oracle’s support website. including but not limited to Oracle’s Software and Support Materials. Defendants have violated the Computer Fraud and Abuse Act.C. § 1030(a)(5)(A)(i) by knowingly causing the transmission of a program. 18 U.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 download scheme. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. 84. SAP has thereby caused significant damage to Oracle through its SAP TN subsidiary. 28 COMPLAINT . § 1030(a)(2)(C). §§ 1030(a)(2)(C) & (a)(4) & a(5)) (By Oracle Against All Defendants) 82. 18 U. without authorization or by exceeding authorized access to such a computer.C.S. interference with Oracle’s business relationships. current. 85. and related computer fraud. code. and by obtaining information from such a protected computer. Defendants have violated the Computer Fraud and Abuse Act. and never disavowed it. First Claim for Relief Violation of Federal Computer Fraud and Abuse Act (18 U.S. ratified it. Using Oracle’s own protected property to unfairly compete against and undercut Oracle. by intentionally accessing a computer used for interstate commerce or communication. and by means of such conduct furthered the intended fraud and obtained one or more things of value.S. § 1030(a)(4) by knowingly. accessing a protected computer. and with intent to defraud Oracle. in addition to the irreparable harm caused by Defendants’ unfair competition. or command and as a result intentionally causing damage without authorization to a protected computer owned by Oracle.C.
data. causing damage to Oracle. fraudulently. Defendants have violated California Penal Code § 502(c)(3) by knowingly. 92. computer system. including. fraudulently. 29 COMPLAINT . 93. copying. and making use of programs.C. and/or computer network. Defendants will continue to commit such acts. but. recklessly or without due regard for their actions.S. Defendants have violated California Penal Code § 502(c)(2) by knowingly and fraudulently.S. in an amount well over $5000 aggregated over a one-year period. and computer systems and other losses and damage in an amount to be proved at trial. and without permission accessing and using Oracle’s computer services. without limitation. 91.S. entitling Oracle to remedies including injunctive relief as provided by 18 U.Cal. Oracle’s remedy at law is not adequate to compensate it for these inflicted and threatened injuries. harm to Oracle’s data. Second Claim for Relief Computer Data Access and Fraud Act . Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here.C. and without permission. Unless restrained and enjoined. Defendants have violated California Penal Code § 502(c)(6) by knowingly. computer system. taking.C. or assisting in providing. 88. Defendants’ unlawful access to and theft from Oracle’s computers also have caused Oracle irreparable injury. and/or computer network. and files from Oracle’s computers. § 1030(g). Penal Code § 502 (By Oracle Against All Defendants) 90. and without permission providing. programs.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 86. in any event. accessing. 87. a means of accessing Oracle’s computers. §§ 1030(a)(5)(A)(ii) & (iii) by intentionally accessing a protected computer without authorization. 89. Defendants have violated the Computer Fraud and Abuse Act. The computer system or systems that Defendants accessed as described above constitute a “protected computer” within the meaning of 18 U. Oracle has suffered damage and loss by reason of these violations. § 1030(e)(2). 18 U.
Third Claim for Relief Intentional Interference With Prospective Economic Advantage (By Oracle Against All Defendants) 99. Defendants have violated California Penal Code § 502(c)(7) by knowingly. there is a 30 COMPLAINT . Defendants have caused damage to Oracle in an amount to be proven at trial. These relationships contained the probability of future economic benefit in the form of profitable support service contracts and software licenses. Oracle is also entitled to recover its reasonable attorneys’ fees pursuant to California Penal Code § 502(e). 97. Oracle is informed and believes that the aforementioned acts of the Defendants were willful and malicious in that Defendants’ acts described above were done with the deliberate intent to injure Oracle’s business and improve its own. 98. Oracle owns the data that comprises the Software and Support Materials obtained by Defendants as alleged above. has no adequate remedy at law. fraudulently. Oracle is therefore entitled to punitive damages. or causing to be accessed. and without permission accessing. computer system. Had Defendants refrained from engaging in the unlawful and wrongful conduct described in this complaint. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. 101. 96. As a direct and proximate result of Defendants’ unlawful conduct within the meaning of California Penal Code § 502. 95. entitling Oracle to injunctive relief. and/or computer network. 100. Oracle’s computers. Oracle has also suffered irreparable injury from these acts. Oracle has an expectancy in continuing and advantageous economic relationships with current and prospective purchasers and licensees of Oracle’s support services and software. and due to the continuing threat of such injury.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 94.
§ 1343. 103. Defendants gained unauthorized access to Oracle’s password-protected Customer Connection support website through false or improper credentials.C. constitutes violations of numerous state and federal statutes and codes. 104. 18 U.C. but not limited to. and without the cost of competing fairly by independently developing the same support materials. renewed. violation of the Federal Computer Fraud and Abuse Act. § 1030 et seq. wire fraud. copied Oracle’s intellectual and contractual property. 18 U. violation of RICO.C.S. 18 U. Defendants’ conduct also constitutes trespass to chattels. 105. as alleged above. As a result of Defendants’ acts. Penal Code § 496. This conduct. Cal. Penal Code § 502. § 1029. fraud and related activity in connection with an access device. §§ 270111. or expanded support contracts and software licenses with Oracle rather than Defendants. and used that property to obtain and retain Oracle’s current and prospective clients. the above-described relationships have been actually disrupted. for their enterprise software. 102.S. On information and belief. in some cases. These acts were undertaken by Defendants to obtain for themselves the software support contract revenue at Oracle’s expense.S.S. and violation of the Stored Communications Act. and ultimately to migrate such customers away from Oracle’s software programs and onto their own. loss of profits from sales or licenses to 31 COMPLAINT . Defendants’ conduct was wrongful by a measure beyond the fact of the interference itself. unauthorized access to computers. § 1962. 18 U. and conspiracy.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 substantial probability that Oracle support customers would have initiated. Defendants were aware of these economic relationships and intended to interfere with and disrupt them by unlawfully and wrongfully taking and using Oracle’s Software and Support Materials to obtain and retain Oracle’s own customers at little to no cost. As a direct and proximate result of Defendants’ actions. receipt of stolen property.C. but not limited to. conversion. including. 106. unjust enrichment. including. Cal.C. 18 U. causing certain current and prospective support clients to contract with Defendants instead of Oracle for their software support and maintenance and..S. Oracle has suffered economic harm.
Defendants’ interference with Oracle’s prospective economic advantage with its current and future customers. 108. Unless Defendants are restrained by appropriate injunctive relief. These relationships contain the probability of future economic benefit in the form of profitable support service contracts and software licenses. was willful. Fourth Claim for Relief Negligent Interference With Prospective Economic Advantage (By Oracle Against All Defendants) 109. Defendants knew or should have known about the economic relationship. Instead. they used Oracle’s Software and Support Materials to obtain and retain for themselves software 32 COMPLAINT .1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 current and potential customers of Oracle support services and software programs. Defendants’ wrongful conduct was a substantial factor in causing this harm. and in conscious disregard of Oracle’s rights. Oracle has an expectancy in continuing and advantageous economic relationships with current and prospective purchasers and licensees of Oracle’s support services and software. their actions are likely to recur and will cause Oracle irreparable injury for which there is no adequate remedy at law. there is a substantial probability that Oracle support customers would have initiated. and knew or should have known that these relationships would be interfered with and disrupted if Defendants failed to act with reasonable care in their use of Oracle’s Software and Support Materials. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. 112. renewed. or expanded support contracts and software licenses with Oracle rather than Defendants. 110. as described above. Had Defendants refrained from engaging in the unlawful and wrongful conduct described in this complaint. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. Defendants failed to act with reasonable care. 111. oppressive. 107. malicious. described above.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 support contract revenue at Oracle’s expense and without the cost of competing fairly by independently developing the same support materials. 18 U. wire fraud. but not limited to.S.C. 18 U.S. Defendants’ wrongful conduct was a substantial factor in causing this harm. § 1030 et seq. Penal Code § 502. constitutes violations of numerous state and federal statutes and codes. § 1343. 115. loss of profits from sales to current and potential customers of Oracle support. 113. Penal Code § 496. as alleged above. §§ 270111.C.C. 18 U. As a result of Defendants’ acts. conversion. including. Oracle has suffered economic harm. As a direct and proximate result of Defendants’ actions. unjust enrichment. including. This conduct. causing certain current and prospective support clients to contract with Defendants instead of Oracle for their software support and maintenance and. and software products.S. violation of RICO. 117. and used that property to obtain and retain Oracle’s current and prospective clients. 33 COMPLAINT . 114. the above-described relationships have been actually disrupted. in some cases. 18 U. their actions are likely to recur and will cause Oracle irreparable injury for which there is no adequate remedy at law.S.C. Cal. violation of the Federal Computer Fraud and Abuse Act. but not limited to. Defendants’ conduct also constitutes trespass to chattels. Defendants gained unauthorized access to Oracle’s password-protected Customer Connection support website through false or improper credentials. fraud and related activity in connection with an access device. Defendants’ conduct was wrongful by a measure beyond the fact of the interference itself. and conspiracy. maintenance. Cal..S. and violation of the Stored Communications Act. Unless Defendants are restrained by appropriate injunctive relief. unauthorized access to computers. for their enterprise software. receipt of stolen property. copied Oracle’s intellectual and contractual property. § 1029.C. 116. 18 U. § 1962.
Cal. In light of Defendants’ conduct. Penal Code § 502. 18 U. conversion. but not limited to. § 1029. 120.S. Defendants have improperly and unlawfully taken commercial advantage of Oracle’s investment in its confidential. 18 U.C. it would be inequitable to allow Defendants to retain the benefit of the funds obtained though the unauthorized and unlawful use of Oracle’s property. & Prof.C. negligent interference with prospective economic advantage.. Defendants have engaged in unlawful business acts or practices by committing acts including computer fraud. 122. Fifth Claim for Relief Unfair Competition . 18 U. including. 18 U. et seq.Cal. 18 U. unauthorized access to computers. conversion. wire fraud. Cal.S.S. and conspiracy. fraud and related activity in connection with an access device. and violation of the Stored Communications Act. all in an effort to gain unfair competitive advantage over Oracle.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 118. 123. Defendants’ conduct also constitutes trespass to chattels. and other illegal acts and practices as alleged above. Penal Code § 496. §§ 1030 et seq. proprietary. Defendants’ conduct constitutes violations of numerous state and federal statutes and codes.C. § 1962. Code §§ 17200. 34 COMPLAINT . These unlawful business acts or practices were committed pursuant to business activity related to providing business applications software and related support and maintenance for that software. unjust enrichment. 121. unlawful. and unfair competition as defined by California Bus. 119.S.C. & Prof. trespass. § 1343.S.C. violation of the Computer Fraud and Abuse Act. §§ 2701-11. violation of RICO. intentional interference with prospective economic advantage. Code § 17200 (By Oracle Against All Defendants) Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. receipt of stolen property. Bus. The acts and conduct of Defendants constitute fraudulent. and copyrighted Software and Support Materials. interference with business relationships.
retention. or distribution of such property. unless Defendants are enjoined from such unfair competition. 125. and copyrighted Software and Support Materials. but not limited to. but not limited to. and deceptive business practices. Defendants should be compelled to disgorge and/or restore any and all revenues. and benefits they may have obtained in violation of California Business & Professions Code § 17200 et seq. profits. to Defendants’ copying. including. in their possession. expressly or impliedly. earnings. 129. downloading. and all copies of such. removal. Sixth Claim for Relief Conversion (By Oracle Against All Defendants) 127.. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. Oracle has an exclusive right to possession and distribution of such property. 128.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 124. whereby Oracle has no adequate remedy at law. This property is the sole and exclusive property of Oracle. including. and should be enjoined from further unlawful. Defendants intentionally and willfully entered Oracle’s password-protected Customer Connection support website without permission and took possession of Oracle’s property. custody. all of which Oracle stored on its computer system. Oracle has also suffered irreparable injury and. Instead of paying Oracle for the use of its property. returning the value of the stolen property itself and any revenue earned from it. or control. Defendants’ unfair business practices have unjustly minimized Oracle’s competitive advantage and have caused and are causing Oracle to suffer damages. Oracle’s confidential. As a result of such unfair competition. which is valuable to Oracle and vital to its continued business operations. proprietary. 126. Defendants should further be ordered to return all materials taken from Oracle. 130. compensation. 35 COMPLAINT . will continue to suffer irreparable injury. Oracle at no time consented. unfair.
Allowing Defendants to retain the benefits received as a result of their wrongful acts would unjustly benefit Defendants at Oracle’s expense. Seventh Claim for Relief Trespass To Chattels (By Oracle Against All Defendants) 136. Defendants have been in knowing and unauthorized possession and control of such property since at least between September 2006 and the present.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 131. Defendants may have been obtaining unjust and substantial benefit from the sale and distribution of Oracle’s property to third parties without Oracle’s consent and without paying Oracle for the value of such property. its access-restricted internet-based support system. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. 36 COMPLAINT . and will continue to lose. Oracle will seek its election of remedies at trial. Since that time. or in the alternative. In addition. 137. In addition. Oracle is entitled to restitution of the Defendants’ ill-gotten gains. in an amount to be determined at trial. Oracle has lost. Defendants’ improper assumption and exercise of dominion and control over Oracle’s property and their likely sale and distribution of the same has and will continue to interfere with and diminish Oracle’s rights in that property. Oracle is entitled to damages and repossession of the converted property. profits from potential purchasers of Oracle support services and licensees of Oracle software products. with interest. 133. as described above. Defendants’ wrongful conduct was a substantial factor in causing this harm. Oracle had legal title to and actual possession of Customer Connection. 134. and the Software and Support Materials on that support system. or in the alternative. As a direct and proximate result of Defendants’ actions. At all times mentioned in this Complaint. 132. 135. and other damages in an amount to be proven at trial. Oracle is entitled to an award of the value of the property taken. at the latest.
in an amount to be determined at trial. Defendants will continue to commit such acts and other competitors will be encouraged to sweep Oracle’s website. and damaged.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 138. As a result. Defendants’ trespass and interference proximately caused damage to Oracle. as well as Defendants’ trespass on. but not limited to. including. for which Oracle’s remedy at law is not adequate to compensate it for the injuries inflicted and threatened. computer fraud concerning. Oracle is entitled to recover any and all damages it sustained as a result of such trespass. 143. 140. and conversion of the Software and Support Materials. Eighth Claim for Relief Unjust Enrichment/Restitution (By Oracle Against All Defendants) 142. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. and the Software and Support Materials housed for licensed access through Customer Connection. 141. Defendants unjustly received benefits at the expense of Oracle through their wrongful conduct. and damage to the confidential and copyrighted nature of the information on Oracle’s website. Defendants caused Oracle’s property to greatly diminish in value and deprived Oracle of the intended use of its computer systems. Defendants’ trespass interfered with. Defendants intentionally interfered with Oracle’s use or possession of both Customer Connection and Oracle’s related internal databases and systems. potentially to the point of denying effective access to Oracle’s customers and preventing Oracle from using its systems and data for their intended purpose. Defendants continue to unjustly retain these benefits at the 37 COMPLAINT . Defendants’ trespass therefore threatens to cause irreparable harm to Oracle. the integrity and functionality of Oracle’s computer system and data. which took substantial time and money for Oracle to develop. including Defendants’ interference with Oracle’s business relationships and other unfair business practices. damage to the functionality of Oracle’s computer system and data. 139. damage to Oracle’s rights to dominion and control over its property.
loss. ratifying. 147. Defendants did the acts alleged pursuant to. 149. Oracle is accordingly entitled to full restitution of all amounts in which Defendants have been unjustly enriched at Oracle’s expense. including Defendants’ interference with Oracle’s business relationships and other unfair business practices. It would be unjust for Defendants to retain any value they obtained as a result of their wrongful conduct.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 expense of Oracle. 148. that agreement and/or furthered the conspiracy by cooperating. computer fraud concerning. loss of profits from sales to current and potential customers of Oracle support services and licenses for Oracle’s software programs. and knowingly agreed and conspired with each other to engage in the alleged wrongful conduct. Oracle has suffered injury. including. and in furtherance of. Defendants willfully. oppressive. and in conscious disregard of Oracle’s rights. malicious. as well as Defendants’ trespass on. The wrongful conduct committed pursuant to the conspiracy was a substantial factor in causing this harm. 144. but not limited to. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. 38 COMPLAINT . and conversion of the Software and Support Materials. 146. and commission of. As a direct and proximate result of the acts in furtherance of the conspiracy. Defendants’ intentional agreement to commit. or adopting the acts of the others. intentionally. these wrongful acts was willful. Ninth Claim for Relief Civil Conspiracy (By Oracle Against All Defendants) 145. encouraging. and harm. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. damage.
computer fraud concerning. Tenth Claim for Relief Aiding and Abetting (By Oracle Against All Defendants) Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. loss of profits from sales to current and potential customers of Oracle support services and licenses to Oracle software programs. as well as Defendants’ trespass on. The wrongful conduct aided and abetted by the Defendants was a substantial factor in causing this harm. 39 COMPLAINT . As a direct and proximate result of the aiding and abetting of these acts. and in conscious disregard of Oracle’s rights. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. by providing substantial assistance and/or encouraging the others to act. was wrongful in and of itself. damage. separately considered. 153. 154. and harm. loss. including. and aided and abetted such wrongful conduct. oppressive. malicious. Defendants also aided and abetted the described wrongful conduct of the other Defendants by giving substantial assistance and/or encouragement that. 150. 151. As fully described above.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 155. Oracle has suffered injury. Eleventh Claim for Relief An Accounting (By Oracle Against All Defendants) Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. but not limited to. Defendants’ aiding and abetting of these wrongful acts was willful. 152. and conversion of the Software and Support Materials. including interference with Oracle’s business relationships and other unfair business practices. Defendants had full knowledge or should have reasonably known of the true nature of the wrongful conduct of each other Defendant.
Oracle’s confidential. to a full accounting. including without limitation. at Oracle’s expense. 158. (b) Improperly. for the purpose of sabotaging Oracle’s ability to do business and compete in the market. and attorneys. without Oracle’s authorization. Defendants have received money as a result of their misconduct. and copyrighted Software and Support Materials. (c) Willfully converting Oracle’s confidential. willfully. Defendants have obtained business through the use of unlawful conduct including. and that some or all of such money is rightfully due to Oracle. and those in active concert or participation with any of them from: (1) accessing any Oracle restricted-access or customer website. Since at least September 2006.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 156. including data. without authorization or consent. agents. or using any property obtained from Oracle’s website. employees. their officers. The amount of money due from Defendants to Oracle is unknown to Oracle and cannot be ascertained without an accounting of the income and gross profits Defendants have obtained through their wrongful and unlawful conduct. in furtherance of their unlawful and deceptive scheme as described above. and copyrighted Software and Support Materials. Prayer For Relief WHEREFORE. therefore. servants. and unlawfully taking commercial advantage of Oracle’s investment in its Software and Support Materials. 157. Oracle respectfully prays for the following: A. Oracle is entitled. including without limitation the Customer Connection website. (d) Fraudulently accessing and intentionally trespassing on Oracle’s password-protected Customer Connection website. distributing. and valuable 40 COMPLAINT . proprietary. and. (2) selling. internal documents. but not limited to: (a) Intentionally and/or negligently interfering with Oracle’s prospective economic advantage with its existing and potential customers. For a preliminary and permanent injunction restraining Defendants. proprietary.
patches. J. That the Court order Defendants to pay Oracle punitive damages in a sum to be determined at trial. including data. B. proprietary. proprietary. (4) otherwise engaging in acts of unfair competition and interference with Oracle’s business relationships. on the basis of their willful and deliberate unauthorized computer access. internal documents. and other computer code. patches. K. as set forth in this Complaint. Oracle’s confidential. That the Court order Defendants to file with the Court and serve on Oracle within thirty (30) days after the service on Defendants of such injunction a report in writing. downloading or copying property from Oracle’s website without Oracle’s authorization. but not limited to Oracle’s confidential. without limitation. and other computer code. 41 COMPLAINT For damages to be proven at trial. setting forth in detail the manner and form in which Defendants have complied with the injunction. including. For prejudgment interest.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 updates. For an Order awarding Oracle such other and further relief as the . fixes. including. and other computer code. F. For an Order awarding Oracle its attorneys’ fees and costs. For an Order directing Defendants to return Oracle’s property. and copyrighted Software and Support Materials. and valuable updates. internal documents. G. D. under oath. (3) removing. patches. Court deems just and proper. C. and. and valuable updates. I. fixes. H. fixes. aiding and abetting and conspiracy. For restitution and disgorgement of all ill-gotten gains unjustly obtained and retained by Defendants through the acts complained of here. and copyrighted Software and Support Materials. intentional interference with Oracle’s prospective economic advantage. that Defendants took from Oracle. including data. For an accounting.
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