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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
and downloaded Software and Support Materials even after the customer had dropped its support rights with Oracle. SAP employees used the log-in IDs of multiple customers. 7. the access originated from an internet protocol (IP) address in Bryan. All of these customers whose IDs SAP appropriated had one critical fact in common: they were. 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. Oracle’s server logs have recorded access through this same IP address by computers labeled with SAP identifiers using SAP IP addresses. to gain access to Oracle’s system under false pretexts. combined with phony user log-in information. and phone number) that did not match the customer at all.000 unauthorized downloads of Software and Support Materials relating to hundreds of different software programs. an SAP America branch office location and home of its wholly-owned subsidiary SAP TN. For example. including the ones described above. Texas. In many instances.” Others used phony email addresses like “test@testyomama. Across its entire library of Software and Support Materials in Customer Connection. Rather. SAP blended log-in information from multiple customers with fake information. 8. like Metro Machine Corp.com” and fake phone numbers such as “7777777777” and “123 456 7897. Texas IP address used to access and download Oracle’s Software and Support Materials is connected directly to SAP’s computer network.. SAP users effectively swept much of the contents of Oracle’s system onto SAP’s servers. Texas. or 4 COMPLAINT . Oracle has found many examples of similar activity. 9. Oracle to date has identified more than 10. this user information did not match anything: it was fake. Employing these techniques. email address.” In other cases.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. These “customer users” supplied user information (such as user name. The Bryan. Indeed. In some cases. For example. SAP TN is a company that purports to provide technical support services on certain versions of Oracle’s PeopleSoft and JDE software programs. 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.
“Oracle Corp. 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. is developing a ‘super set’ of applications.” 13. and support. called Project Fusion. Inc. copyrighted Software and Support Materials. aimed at taking market share from No. increasing Oracle’s potency as a competitor to SAP AG for enterprise applications software. * * In the world of enterprise software applications.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. this theft appears to be an essential – and illegal – part of SAP’s competitive strategy against Oracle. Oracle said it has thousands of developers building the new application suite. 10. developers. Oracle had previously announced that in January 2005 it would complete its acquisition of PeopleSoft. in 2003. an independent software support company founded by former PeopleSoft software engineers. consulting. SAP’s own statements confirmed it. 1 ranked SAP. SAP AG’s hasty acquisition of SAP TN was widely perceived as a response to the new competitive threat from Oracle. (b) consulting relating to the implementation and operation of the software. Edwards World Solutions. Oracle officially became a player on SAP’s turf. Not by coincidence. SAP apparently has now warehoused an extensive library of Oracle’s proprietary. * 11. As a result of this illegal activity. In January 2005. As explained below. new customers of SAP TN – SAP AG’s and SAP America’s software support subsidiary whose sole purpose is to compete with Oracle. Industry observers noted this fundamental shift in the competitive landscape. revenue comes from three basic activities: (a) license of the underlying software. and (c) support contracts to keep the software updated and upgraded. a software company acquired by PeopleSoft. SAP AG acquired SAP TN. “After the acquisition of PeopleSoft earlier this year. and support technicians. through SAP America. One industry analyst stated that. SAP AG spokesman Bill Wohl vowed that SAP AG would use SAP TN to “keep the pressure on 1 “JDE” refers to J. 5 COMPLAINT .” Another mused. 12.D.
explicitly designed to transition customers away from Oracle products and onto the SAP software platform. with indications that this number may go significantly higher if traced further back in time. Bill McDermott. much less the 50% discount promoted by SAP. Nevertheless.” 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. SAP advertised this strategy as its “Safe Passage” program. SAP stole much of the Software and Support Materials directly from Oracle. · A systematic pattern of “sweeping” Oracle’s Customer Connection support website from SAP TN servers just days before. or even come close to it. 15.000 illicit downloads from Customer Connection between September 2006 and January 2007.” Although SAP America President and CEO. It certainly did not match Oracle’s investment in development resources. SAP TN’s services “form[ed] the basis of [SAP AG’s] Safe Passage initiative. SAP America’s CEO. SAP TN did not appear to have the development capability to meet the support commitments advertised in the “Safe Passage” brochures at any price. 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.” In connection with the SAP TN acquisition. or the day of.” and a sign that “SAP has taken the gloves off. the 6 COMPLAINT SAP’s unlawful copying and theft includes. 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. Indeed. As reported in industry publications. SAP appeared to focus more on growing the SAP TN sales force rather than investing in or expanding SAP TN’s tiny development team. by way of example. committed to throw “a lot of additional resources” behind SAP TN (which consisted of only 37 employees in total). the . 14. crowed “There’s nothing that I love more than to win. Bill McDermott. industry observers deemed the “Safe Passage” program “measurably more aggressive. a program aimed at siphoning off valuable software maintenance revenue from Oracle and persuading Oracle customers to switch software products [to SAP]. following: · More than 10.
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. These illegal business practices threaten to cause irreparable harm to Oracle. the indiscriminate. and to attempt to convert these customers to SAP software applications. · Accessing and downloading Software and Support Materials across multiple product lines in multiple lines of business available on the Customer Connection support website. 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. · The improper access to. authorized customers or through normal access to Oracle’s Customer Connection system. SAP has taken Oracle’s Software and Support Materials and apparently used them to insinuate itself into Oracle’s customer base. In short. and its customers. to try to “keep the pressure on Oracle. and theft of. · On multiple occasions.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. and deceptive business practices that continues to this day. in the purported name of customers that had never licensed those products and had no legal access to them. Oracle has no adequate remedy at law for the harm threatened and caused by these acts. its many employees. clearly-marked internal proprietary Oracle support documents not available even to licensed. unlawful. expiration of a new SAP TN customer’s support contract with Oracle. 7 COMPLAINT . or in some cases on behalf of former Oracle customers with no access rights to Oracle’s Software and Support Materials whatsoever. Through its illegitimate and illegal business practices.” SAP has been engaged in a systematic program of unfair.
Oracle USA is a Colorado corporation duly authorized to do business in the State of California. Texas. Pennsylvania. with its principal place of business in Redwood City. The corporate relationship of the three named defendants is set forth in the chart below. Oracle Corporation is a Delaware corporation with its principal place of business in Redwood City. Directly and through its subsidiaries. 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. Inc. Oracle Corporation and Oracle USA are the licensees of the copyrights at issue in this action.. 19. Oracle Corporation develops and licenses database and applications software programs and provides related services around the world. Walldorf. 20. with its only place of business in Redwood City. County of San Mateo.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. 23. 22. State of California. County of San Mateo. Oracle USA is the successor to PeopleSoft USA. OIC is a California corporation duly authorized to do business in the State of California. 18. (“PeopleSoft”) and JDE. 8 COMPLAINT . SAP TN is a Texas corporation with its principal place of business in Bryan. 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. OIC is the owner of the copyrights at issue in this action. County of San Mateo. State of California. Germany. SAP America is a wholly-owned subsidiary of SAP AG. SAP TN is a wholly-owned subsidiary of SAP America. THE PARTIES 17. Oracle USA develops and licenses database and applications software programs and provides related services. 21. State of California.
service. 26. sell. and support customers in California and in this judicial district. and therefore sues these defendants by such fictitious names. through its 100% ownership of both SAP America and SAP TN. and finances the sales and promotional activities of both SAP America and SAP TN throughout the United States and in California. had full knowledge of and gave substantial 9 COMPLAINT . and specifically this judicial district. Defendants all are doing business in and/or have directed their activities at California. including Does 1 through 50. alter ego. Subsidiary) Oracle is currently unaware of the true names and capacities of Does 1 through 50. or otherwise.S. Oracle will amend this Complaint to allege their true names and capacities when ascertained. specifically in this judicial district.S. At all material times. 27. inclusive. At all material times. unincorporated association. servant. representative. or co-conspirator of the others. at all material times. 25. SAP AG also holds an annual meeting of its Board of Directors in Palo Alto. California. Subsidiary) SAP TN (Wholly-owned U. promote.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. joint venturer. partner. Similarly. SAP AG (German Parent Corporation) SAP America (Wholly-owned U. corporation. parent. SAP America had both the right and authority to control the actions of SAP TN. through its 100% ownership of SAP TN. employee. subsidiary. 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. was the agent. By way of example only. partnership. SAP AG had both the right and the authority to control the actions of both corporations. license. SAP America and SAP TN advertise. whether individual. affiliate. SAP AG negotiates and enters into software license and support agreements directly within the United States and. each of the Defendants.
S. pursuant to 28 U.C. § 1391.1 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.C. 17 U. representation.S. joint venture. Oracle is the world’s largest enterprise software company. 29.S. Venue in this district is appropriate.D.C. et seq.C. § 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. INTRADISTRICT ASSIGNMENT 31. §§ 101. each was acting within the scope of such agency. V. 18 U.S.S. § 1331. Assignment is proper in this division under Civil L. JURISDICTION 28. VI. and the first to receive J. FACTUAL ALLEGATIONS A. This Court has supplemental subject matter jurisdiction over the pendent state law claims under 28 U.S. Power & Associates’ global certification for outstanding service and support based 10 COMPLAINT .R. affiliation.S. and this Court has subject-matter jurisdiction over this action pursuant to 18 U.. and the Court will have subjectmatter jurisdiction over those claims pursuant to 28 U. In addition. Oracle’s first cause of action arises under the Computer Fraud and Abuse Act.C. because a substantial part of the events giving rise to the dispute occurred in this district. Oracle’s Software and Support Materials 32. §§ 1030 et seq. 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. when the relevant copyright registrations issue. § 1338. and the Court has personal jurisdiction over each of the parties as alleged throughout this Complaint. employment. Oracle will seek to amend this Complaint to add claims for copyright infringement under the Copyright Act. IV. 3-2 (c) and (d). and in doing the things alleged..C. partnership. § 1030(g) and 28 U. a substantial part of the property that is the subject of the action is situated in this district.C. service. III. and each is legally responsible for the acts and omissions of the others. VENUE 30. or conspiracy.
Use for any other purpose is expressly prohibited. 41. datasheets and FAQs) from this server (“Server”) is granted. 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. software action requests. 13 COMPLAINT . WITHOUT LIMITING THE FOREGOING. such as a Software Application Request (“SAR”) through the SAR Search Web Application. Any reproduction or redistribution of the Software not in accordance with the License Agreement is expressly prohibited. 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”). and (3) no modifications of any Documents are made. the user must click on a button indicating that it accepts these terms. COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. These terms notify the user that the software available to download from Oracle is Oracle’s copyrighted material. The Legal Download Agreement further restricts use of documents downloaded from the website: Permission to use Documents (such as white papers. agree to additional legal restrictions. 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. 42. press releases. users accessing specific 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 JDEdwards and/or its affiliates or suppliers.” To download a SAR. 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. product or upgrade announcements. In addition. provided that (1) the below copyright notice appears in all copies and that both the copyright notice and this permission notice appear. (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.
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. SAP AG instead considered how to undermine Oracle. and geographic and product scope.000 people joining by Webcast and phone.” After the merger. 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. these same products. 45.000 business applications software customers throughout the world. the combination revitalized Oracle overnight as a competitor in the business software applications business. Oracle launched the newly-united company and unveiled. Oracle Threatens To Unseat SAP 43.1 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. As SAP AG reeled. Rather than improve its own products and offerings. As SAP America’s Vice President of Operations. 2005. 14 COMPLAINT . at its headquarters with more than 48. SAP AG CEO Henning Kagermann claimed that even with PeopleSoft. Not only do many SAP AG customers use Oracle’s superior database software programs. On January 7. 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. 46. despite not owning any of the software code for. Richard Knowles. or intellectual property rights to. 44. how the nearly 50. Oracle would “not [be] a competitor which could really hurt us. testified on June 23. size.000-strong combined workforce of Oracle and PeopleSoft would provide unparalleled innovation and support to 23. broader product line of enterprise applications software programs to compete against SAP AG. SAP AG suddenly found itself in a far different competitive environment than the one in which it had grown comfortable. he even claimed to wish Oracle “good luck” in competing with SAP AG. but now Oracle offered a deeper. 2004 at the trial on the Department of Justice’s unsuccessful effort to block Oracle’s acquisition of PeopleSoft. But SAP AG had no answer for the business proposition the new Oracle offered.
SAP AG has refused to disclose the terms of its SAP TN purchase. but – with the Oracle/PeopleSoft 15 COMPLAINT . As one industry observer put it. To retain full control over every detail of its scheme to lure away customers from Oracle. Texas and founded by former PeopleSoft employees. 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. headquartered in Bryan.” D. As one industry journalist explained. JDE. in December 2004. SAP AG proposed to buy SAP TN outright and make it a wholly-owned – and wholly-beholden – subsidiary. and to use SAP TN to do it. Oracle. just weeks before Oracle would close the PeopleSoft acquisition. but a calculated competitive move.” 49. As described in a glossy spread in a leading industry publication.” Aligning with SAP AG made little sense for SAP TN. it instead focuses on simply keeping the software up and running for an annual fee. because to the extent SAP AG successfully undermined Oracle by having its customers move from Oracle’s software to SAP AG’s software. So SAP AG had to make the price right. SAP TN was a small software services company. however. In December 2004.” Mackey made Nelson an offer “he couldn’t refuse. It claimed to compete with PeopleSoft.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. SAP Responds To Oracle Competition With Its “Safe Passage” Scheme 48. by providing low-cost maintenance and support services to PeopleSoft and JDE customers running assorted versions of these software programs. SAP TN would eventually lose its customer base. and later. often outdated. SAP AG bought “another arrow in its quiver to hunt after Oracle’s customers. Acquiring SAP TN was not a mere investment by SAP AG. SAP TN 47. SAP TN president Andrew Nelson got “the magic phone call” from Jim Mackey. SAP AG’s “front man for SAP AG’s mergers and acquisitions strategy. 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. 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 AG’s top executives unveiled SAP AG’s acquisition of SAP TN as the centerpiece of its new “Safe Passage” scheme. As SAP AG Managing Director Alan Sedghi admitted. publicly vowed to bankroll this effort to undermine Oracle by putting “a lot of additional resources into TomorrowNow. Andrew Nelson. publicly indicating that SAP TN was authorized and intended to implement SAP AG’s goals. SAP America’s CEO. SAP TN agreed to the deal and cast its lot with SAP AG. “We're owned by SAP. 50.” A month later. In April 2005. 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. Bill McDermott.” The Senior Vice President and Chief Operating Officer of SAP Asia Pacific. SAP AG’s CEO.” 16 COMPLAINT . After the acquisition. Henning Kagermann. SAP America CEO Bill McDermott claimed “The SAP Safe Passage offering gives companies an affordable way to protect their current investments. to lure the support business over. ease integration with SAP NetWeaver(TM) and begin the process of innovating their businesses today. 52.1 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. in barely a month. which in turn was part of SAP’s “ongoing strategy to compete with Oracle. On January 19. SAP TN’s new parent companies directed it to begin to implement a two-phase plan to increase SAP’s enterprise application market share. in connection with converting Oracle customers to SAP support (via SAP TN).” And SAP TN certainly knew its role was to achieve SAP AG’s ends: as SAP TN’s CEO.” 51. admitted that the SAP TN acquisition was “an integral part” of SAP’s Safe Passage program. identified SAP TN as instrumental to the parent company’s “Safe Passage” program. stated. SAP AG would try to use SAP TN as a means of “speeding-up” the migration of PeopleSoft and JDE users to SAP platforms. First. 2005. SAP would offer cut-rate pricing combined with the promise of essentially unlimited future support to former PeopleSoft and JDE support customers. The CEOs stated the proposition more bluntly. Second. We want them to be successful. Colin Sampson. SAP would aggressively campaign to migrate those customers to an SAP enterprise software platform. at the SAP AG annual meeting.
consider another option: SAP. To implement Phase Two of its plan (luring Oracle customers to the SAP enterprise software platform). SAP AG’s “second wave” included “an intensive customer recruitment campaign. albeit unfounded.” and elsewhere says that “Safe Passage maintenance and support are delivered worldwide through TomorrowNow. To give teeth to these commingled sales efforts.” (emphasis supplied) SAP America’s website promises that “SAP and TomorrowNow can cut your maintenance costs by as much as 50% through 2015. offering significantly lower cost maintenance alternatives to Oracle customers running PSFT/JDE solutions” through 70. 55.1 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. Instead.” 54. technology and maintenance services. As reflected on SAP AG’s website: “SAP offers Safe Passage for PeopleSoft. SAP implemented Phase One immediately. it took a hands-on approach. officially “bundled” with SAP AG enterprise software as a centerpiece of the Safe Passage program. 17 COMPLAINT .000 direct mail solicitations to Oracle customers. the SAP AG sales personnel would pressure the customers to drop Oracle products outright in favor of SAP AG’s suite. If customers declined to convert to 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.” 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. SAP provides solutions. It deployed its salespeople to contact potential customers and push them to switch to SAP TN’s services. JD Edwards. PeopleSoft and JDE customer uncertainty about the prospects for long-term. These lower cost alternatives advertised by SAP AG were to come directly through SAP TN. Beginning in January 2005. SAP sales representatives unleashed a torrent of marketing materials designed to exacerbate and leverage perceived. SAP AG offered maintenance support through SAP TN. and Siebel customers – If Oracle’s options have you worried.” To exploit the fear it intended to create. SAP AG did not simply sit back and leave the recruiting of potential Safe Passage customers to SAP TN’s sales force. quality support from Oracle.
Henning Kagermann.” including because SAP AG “extended the program in order to offer it as well to Siebel 18 COMPLAINT . SAP AG’s CEO. By March 2006. Léo Apotheker. companies and corporate cultures. and more aggressive.” but its services were expanded to support more Oracle product lines and a wider range of customers. SAP AG continued to tout the success of Safe Passage. In a July 2006 earnings call. SAP AG’s President of Customer Solutions and Operations. SAP executives touted the Safe Passage program’s limited success in its first year. As reported on Forbes. 2005 announcement that it would acquire Siebel Systems.” SAP’s “cheaper price” (referred to elsewhere as “cut rate” support) continued at “50 cents on the dollar for maintenance fees. round the clock Siebel code support within a few weeks of Oracle’s acquisition announcement remained a mystery. 58. that it will offer technical support for more of rival software maker Oracle Corp.’s own products [the Siebel products] for a far cheaper price. and which it claimed “offers companies SAP solutions. SAP AG boasted in a press release that more than 200 customers had signed up for Safe Passage. At the same time. investment protection and a clear road map to the next generation of business software.com after Oracle’s announcement of its impending Siebel acquisition. . “SAP AG plans to announce . 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. In October 2005. SAP grew more desperate. promised SAP AG would use SAP TN and the Safe Passage program to “fight for” more customers. the program it implemented partly through SAP TN. boasted that Safe Passage “continues to do really well. However. technology. 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. curiously. as Oracle continued to take market share and expand its product offerings. Bill McDermott. SAP announced it would extend its Safe Passage program to Siebel customers. By July 2006. maintenance services. . including through its September 12. SAP America President and CEO.” 57.” How SAP could offer instantaneous. SAP AG CEO Henning Kagermann conceded that SAP had lost as much as 2% market share to 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 56.
and updates that comprise the advanced support services required by Oracle’s licensed customers. Oracle has now solved this puzzle. even after having expanded its ranks to 150 employees. most remarkably. and the logic. To stave off the mounting competitive threat from Oracle. To compound the puzzle.000 software and support engineers to create and help implement the code fixes. Apotheker claimed that SAP now had “a global network of [SAP TN] capabilities” – enough to “gain significant traction. could actually develop and offer the hundreds of regulatory updates. “30-minute response time.” “fixes for serious issues. some industry analysts wondered whether a small company like SAP TN. and purported to add full support for an entirely different product line – Siebel – with a wave of its hand. A Deal Too Good To Be True 59.” E. Oracle Finds A Suspicious Pattern To analyze and improve on its industry leading support services. 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 . maintains a development force of more than 15. 24x7x365” on software programs for which it had no intellectual property rights. 61. as it did on its website and its other materials.” and. F. SAP unlawfully accessed and copied Oracle’s 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 customers. 60.” By extending the Safe Passage program to Siebel customers. It was not clear how SAP TN could offer. and other labor-intensive support items that a customer would need to maintain useful. SAP continued to offer this comprehensive support to hundreds of customers at the “cut rate” of 50 cents on the dollar. patches. optimally functioning Oracle software. Although SAP put a brave face on its ability to compete with the increasingly potent Oracle applications offerings. bug fixes. The economics. Oracle. by comparison. 62.” “full upgrade script support. without infringing on Oracle’s intellectual property. “customized ongoing tax and regulatory updates. The SAP Solution: Stolen Passage 1. simply did not add up. patches. and in conjunction with opening new SAP TN offices around the world.
or thousands of products beyond the scope of the specific customer’s licensed products and permitted access. Some of these apparent customer users even downloaded materials after their contractual support rights had expired. would access Oracle’s system and download large quantities of Software and Support Materials. 65. these clicks could not reflect real responses from any human customers actually reading the solutions they had accessed. 64. a user purporting to be that customer. 63. authorized use of Customer Connection. employing the customer’s log-in credentials. Oracle noticed huge.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. Oracle soon discovered that many of these “customers” had taken massive quantities of Software and Support Materials beyond their license rights. in the month before a customer’s Oracle support expired. These clicks numbered in the thousands for several customers. unexplained spikes in the number of customers on the online support website who had clicked the “No. Frequently. and Oracle discovered that each response – each answer by users pretending to be the customer – occurred in a matter of seconds or less. And. over and over again. Indeed. Given the extreme speed at which the activity occurred. continue search” option. Oracle discovered a pattern. to take a copy of them all. In late 2006. hundreds. Instead. If the customer selects the “No. In the course of this investigation. the support system responds by offering the customer further options. Oracle regularly compiles this data to assess whether its system helped customers resolve their support issues. 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. continue search” option. including dozens. 20 COMPLAINT . Oracle also discovered that the downloaded Software and Support Materials included internal documents not available even to licensed customers and not available through normal. 2. apparently. 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. with the aim of continually improving the support system for customers.
Of SAP TN’s tenmember management team. · That the customer username and password are for the customer’s sole use in accessing this support server. or lease the Software or Documentation. such as Wade Walden.P. relicense. V.P. SAP TN’s management. · That the Materials on the support website are confidential information subject to existing confidentiality agreements. Edwards Support. or Oracle. use. V. JDE. International Sales. · 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. Global PeopleSoft Support. disclose. formerly worked at PeopleSoft and JDE. (5) Nigel Pullan.P. who is reflected as the person performing many of the downloads at issue. including: (1) Andrew Nelson. former PeopleSoft employees who work for SAP. for third party use. and (6) Shelley Nelson.D. President and CEO. (2) Bob Geib.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. six list prior employment experience with PeopleSoft. or any portion thereof.P. V. In addition. Global J. · Not to directly or indirectly. · Not to access the customer support system if it is not the customer’s authorized and designated Oracle technical support contact. North American Sales. · 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. V. distribute. V. SAP TN has intimate familiarity with these important restrictions and conditions relating to Oracle’s Software and Support Materials. (4) Mel Gadd. (3) Laura Sweetman. appear to have applied their familiarity with the Customer Connection website to directly participate in and perfect the illegal 22 COMPLAINT .P. sublicense. rent. Quality. and a significant number of its employees. or third party training.
Merck & Co..S. including without limitation.C. Border Foods. National Manufacturing. Fuelserv Limited. Stora Enso..A. and distribute these works. NGC Management Limited. Stearns & Co. to comprehensively detail here. 74. and Yazaki North America. OCE Technologies. Texas Association of School Boards. 17 U. Mortice Kern Systems. publish. and therefore committed its theft knowingly and intentionally. 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. Laird Plastics. 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. Berri Limited.. Such acts constitute copyright infringement under 17 U. Oracle’s Customer Connection website is too pervasive. AbitibiConsolidated. Inc. § 506. Metro Machine Corp. Inc.S. Helzberg Diamonds. and covers too many individual violations. and taking from. create derivative works. B. VSM Group AB. 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. Smithfield Foods. SAP TN’s acts violated Oracle’s exclusive rights to use. Ronis.. Interbrew UK. S.S. 4.C. §§ 101 et seq. offer for sale.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. Herbert Waldman. and impose strict confidentiality requirements. Accordingly.C.. Honeywell International. Caterpillar Elphinstone.V. § 501 and also willful and intentional copyright infringement under 17 U. 75. SAP TN reviewed and agreed to the terms and conditions on Oracle’s support website before proceeding. reproduce. display.. and in conscious disregard of Oracle’s protected intellectual property and the integrity of its computer systems. Specific Examples Of SAP TN’s Unlawful Customer Downloads SAP TN’s improper access to.. Distribution & Auto Service. Abbott Laboratories. By way of example 24 COMPLAINT . Bear. Oracle has uncovered unlicensed downloads linked to SAP TN on behalf of numerous customers. With literally thousands of software programs available for licensing. Grupo Costamex. SPX Corporation.
Honeywell used and licensed PeopleSoft software applications. Over 2. a user employing Honeywell’s log-in ID downloaded over 7. one of the largest pharmaceutical companies in the world. the unauthorized downloads did not stop there. Honeywell International (“Honeywell”) is listed on SAP TN’s website as a client. “Honeywell” downloaded over 450 distinct unlicensed solutions on January 16. licenses and receives support for many Oracle software products. users purporting to be “Merck” logged into the Oracle support system and downloaded over 9. Users logging into Oracle’s support system with Merck’s credentials continued to download Software and Support Materials into March 2007. Most of these excessive downloads came during the course of four days. In the approximately three and a half year period before Honeywell switched to SAP TN. 2007.1 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. Many of these “Merck” downloads came directly from an IP address in Bryan. This unlawful downloading even stretched across product families. 77. Merck. More than 5. during which “Honeywell” was downloading almost 1800 solutions per day. In one specific library containing solutions for Enterprise One software. In the three months prior to that date. Honeywell.000 distinct Software and Support Materials for JDE software.000 of these downloads related to JDE software products for which Merck had no license. 25 COMPLAINT . 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. but Oracle discovered users downloading JDE products with Honeywell’s credentials. Merck & Company. it averaged just over 20 downloads of Software and Support Materials per month. Oracle subsequently connected many of the illegal downloads to an SAP TN IP address and to SAP TN’s employee. Then. Oracle sets forth below illustrative instances of SAP TN’s illegal conduct regarding a few of its customers. Merck’s support rights for its JDE software products expired on January 1. 2007 and nearly 400 more the next day.000 Software and Support Materials in less than two weeks in January 2007. Wade Walden – a former PeopleSoft employee now employed by SAP. Inc. after switching to SAP TN. 76. But. (“Merck”).000 of the Software and Support Materials taken in this period were solutions that Honeywell was not licensed to take at all.
Canadian Payroll. since OCE does not run many of the software programs to which these downloads relate. “TNL-02. SAP TN users employed fake identification information to download the Software and Support Materials. SAP TN users logged into Oracle’s support system using OCE’s credentials (and.000 distinct Software and Support Materials.” and even “xxx xxx xxxx. 78. Homebuilder Management.000-plus unlicensed Software and Support Materials from Oracle. In the months leading up to the expiration of OCE’s support rights for its Oracle products.” Neither Merck nor SAP TN had any license. these illegal downloads are associated with the same IP address belonging to SAP TN in Bryan. “TN-DL03. Like the other companies. users employing OCE’s credentials downloaded a large number of Oracle products relating to US Payroll.” 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. authorization or other right to access and download the 5. From December of 2006 to January of 2007.1 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. in some cases. Texas. authorization. false user names) and downloaded over 12. using names such as “xx” “ss” and “NULL.” and phone numbers such as “4444444444” and “999 999 9999. such as the name “user” and phone numbers such as “123 456 7897. OCE. OCE-Technologies B.” In many cases. and could serve no legitimate or lawful business purpose. and some were traced to a computer with SAP TN’s initials in the title. and Real Estate Management – none of which make sense coming from a European customer in support of its European business.” Similar to the other customer examples. and neither OCE nor SAP TN have any license. (“OCE”) is located in the Netherlands and appears as a customer on SAP TN’s website. or other right to access and download these Software and Support Materials. These downloads included over 3. many of these “OCE” users entered phony identification information. including specifically to a computer with SAP TN’s initials in the title.V.” “9999999999.000 distinct items for which OCE had no license. There is little chance that SAP TN intended OCE as the beneficiary of these massive sweeps. 26 COMPLAINT .
listed on its website. like the others. and some were traced to a computer with SAP TN’s initials in the title.” Many of these SPX downloads. SAP Adds The Ill-Gotten Gains To Its Coffers 81. 2006 and became an SAP TN customer. In the month before Metro Machine dropped its support rights with Oracle.” 80. Over 300 distinct downloads just on November 30. users purporting to represent Metro Machine logged onto Oracle’s support servers and downloaded nearly 6. at SAP AG’s and SAP America’s direction. SPX Corporation (“SPX”) dropped all Oracle support on December 10. illegally downloaded thousands of fixes and updates from Oracle’s restricted customer support website. SPX. In addition. Oracle has traced these illegal and unauthorized downloads to the same SAP TN IP address employed for the Honeywell downloads described above. users purporting to represent SPX accessed and downloaded over 8. SPX averaged approximately eleven downloads per month from Oracle’s support system. originated from the same IP address belonging to SAP TN. Nearly 400 of those downloads related to software programs that Metro Machine had not licensed from Oracle. In some cases. 2006 were Software and Support Materials related to unlicensed Payroll software. (“Metro Machine”) dropped all Oracle support effective on January 1. For the nine month period prior to October 2006.700 distinct Software and Support Materials for which SPX had no license. 2007 and switched to SAP TN. SAP AG and SAP America directed this 27 COMPLAINT . SAP TN now claims to have delivered thousands of fixes and more than 800 tax and regulatory updates to Oracle’s former customers. but used fake identification information like the name “NULL” and phone numbers like “7777777777” and “999 999 9999. Not coincidentally. Metro Machine.000 distinct Software and Support Materials. These SPX downloads included over 1.000 distinct Oracle Software and Support Materials (far more than SPX could legitimately access or use). as reflected on SAP TN’s website. Metro Machine Corp.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. “tn-wts01. these users logged in using SPX credentials. users logging into Oracle’s support system with Metro Machine’s credentials continued to download Software and Support Materials into March 2007. between October and December 2006. SAP TN. G. Then.
by intentionally accessing a computer used for interstate commerce or communication. and with intent to defraud Oracle. code. 18 U. § 1030(a)(4) by knowingly.C. without authorization or by exceeding authorized access to such a computer. First Claim for Relief Violation of Federal Computer Fraud and Abuse Act (18 U. and by means of such conduct furthered the intended fraud and obtained one or more things of value. and prospective customers and the associated license and support revenue to artificially inflate its market share.S. 18 U.C. 84. § 1030(a)(5)(A)(i) by knowingly causing the transmission of a program. or command and as a result intentionally causing damage without authorization to a protected computer owned by Oracle. Defendants have violated the Computer Fraud and Abuse Act. accessing a protected computer.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.C. SAP has thereby caused significant damage to Oracle through its SAP TN subsidiary. 83. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. without authorization or by exceeding authorized access to such a computer. information. and related computer fraud.S. Defendants have violated the Computer Fraud and Abuse Act. in addition to the irreparable harm caused by Defendants’ unfair competition. ratified it. 28 COMPLAINT . Using Oracle’s own protected property to unfairly compete against and undercut Oracle. and by obtaining information from such a protected computer. 18 U. § 1030(a)(2)(C). trespass on Oracle’s support website. and never disavowed it. Defendants have violated the Computer Fraud and Abuse Act. including but not limited to Oracle’s Software and Support Materials.S. §§ 1030(a)(2)(C) & (a)(4) & a(5)) (By Oracle Against All Defendants) 82.S. 85. interference with Oracle’s business relationships. current.C. SAP has illegally converted Oracle’s former.
fraudulently. 89. including. causing damage to Oracle. Defendants have violated California Penal Code § 502(c)(6) by knowingly. 92. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. and without permission accessing and using Oracle’s computer services. Defendants have violated California Penal Code § 502(c)(2) by knowingly and fraudulently. and files from Oracle’s computers. Defendants have violated the Computer Fraud and Abuse Act. or assisting in providing. Second Claim for Relief Computer Data Access and Fraud Act . and without permission providing. harm to Oracle’s data. data. computer system. Oracle’s remedy at law is not adequate to compensate it for these inflicted and threatened injuries. § 1030(g). in any event. Oracle has suffered damage and loss by reason of these violations. taking. programs. accessing. recklessly or without due regard for their actions. entitling Oracle to remedies including injunctive relief as provided by 18 U.C. Defendants have violated California Penal Code § 502(c)(3) by knowingly. without limitation. and making use of programs.S. The computer system or systems that Defendants accessed as described above constitute a “protected computer” within the meaning of 18 U. copying. 88. 29 COMPLAINT .C. and without permission. in an amount well over $5000 aggregated over a one-year period. Defendants’ unlawful access to and theft from Oracle’s computers also have caused Oracle irreparable injury. fraudulently. but. and/or computer network. Penal Code § 502 (By Oracle Against All Defendants) 90. 91.S.C. 87. 18 U. and/or computer network. computer system. Defendants will continue to commit such acts. §§ 1030(a)(5)(A)(ii) & (iii) by intentionally accessing a protected computer without authorization. § 1030(e)(2).S.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. 93. Unless restrained and enjoined.Cal. a means of accessing Oracle’s computers. and computer systems and other losses and damage in an amount to be proved at trial.
Oracle’s computers. has no adequate remedy at law. fraudulently. entitling Oracle to injunctive relief. and due to the continuing threat of such injury. there is a 30 COMPLAINT . Third Claim for Relief Intentional Interference With Prospective Economic Advantage (By Oracle Against All Defendants) 99. As a direct and proximate result of Defendants’ unlawful conduct within the meaning of California Penal Code § 502. 97. Oracle has also suffered irreparable injury from these acts. computer system. These relationships contained the probability of future economic benefit in the form of profitable support service contracts and software licenses. Had Defendants refrained from engaging in the unlawful and wrongful conduct described in this complaint. 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 without permission accessing. 96. 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. 101. 95. Oracle is also entitled to recover its reasonable attorneys’ fees pursuant to California Penal Code § 502(e). and/or computer network. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. Defendants have violated California Penal Code § 502(c)(7) by knowingly. or causing to be accessed.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. Oracle owns the data that comprises the Software and Support Materials obtained by Defendants as alleged above. 98. Defendants have caused damage to Oracle in an amount to be proven at trial. Oracle is therefore entitled to punitive damages. 100.
§ 1029.. 18 U. Defendants’ conduct also constitutes trespass to chattels. 18 U. receipt of stolen property.C.S. 103. and violation of the Stored Communications Act. Oracle has suffered economic harm. unauthorized access to computers. including. This conduct. but not limited to. in some cases.S.S. including. renewed. the above-described relationships have been actually disrupted. §§ 270111. and without the cost of competing fairly by independently developing the same support materials. or expanded support contracts and software licenses with Oracle rather than Defendants. as alleged above. Penal Code § 502. § 1962. Cal. 18 U. 18 U. but not limited to. loss of profits from sales or licenses to 31 COMPLAINT . These acts were undertaken by Defendants to obtain for themselves the software support contract revenue at Oracle’s expense. constitutes violations of numerous state and federal statutes and codes.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. Penal Code § 496. unjust enrichment. Defendants’ conduct was wrongful by a measure beyond the fact of the interference itself. conversion. As a result of Defendants’ acts. fraud and related activity in connection with an access device. 18 U.C. violation of RICO. violation of the Federal Computer Fraud and Abuse Act. 104.S.C. and used that property to obtain and retain Oracle’s current and prospective clients. § 1030 et seq. On information and belief. Defendants gained unauthorized access to Oracle’s password-protected Customer Connection support website through false or improper credentials. causing certain current and prospective support clients to contract with Defendants instead of Oracle for their software support and maintenance and. 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.C. and conspiracy. § 1343. wire fraud.S. copied Oracle’s intellectual and contractual property. Cal. for their enterprise software. 106. As a direct and proximate result of Defendants’ actions. 102. and ultimately to migrate such customers away from Oracle’s software programs and onto their own. 105.C.
107.1 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. Had Defendants refrained from engaging in the unlawful and wrongful conduct described in this complaint. 112. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. Defendants knew or should have known about the economic relationship. Fourth Claim for Relief Negligent Interference With Prospective Economic Advantage (By Oracle Against All Defendants) 109. These relationships contain the probability of future economic benefit in the form of profitable support service contracts and software licenses. there is a substantial probability that Oracle support customers would have initiated. Instead. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. Oracle has an expectancy in continuing and advantageous economic relationships with current and prospective purchasers and licensees of Oracle’s support services and software. or expanded support contracts and software licenses with Oracle rather than Defendants. 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. renewed. described above. Defendants’ wrongful conduct was a substantial factor in causing this harm. Defendants’ interference with Oracle’s prospective economic advantage with its current and future customers. 108. malicious. they used Oracle’s Software and Support Materials to obtain and retain for themselves software 32 COMPLAINT . and in conscious disregard of Oracle’s rights. Unless Defendants are restrained by appropriate injunctive relief. 111. 110. oppressive. as described above. Defendants failed to act with reasonable care. their actions are likely to recur and will cause Oracle irreparable injury for which there is no adequate remedy at law. was willful.
maintenance. violation of the Federal Computer Fraud and Abuse Act.S. § 1029. This conduct. 33 COMPLAINT . 18 U. Defendants’ wrongful conduct was a substantial factor in causing this harm.C. Cal. and conspiracy. Penal Code § 502. including. Cal. 18 U. 18 U. the above-described relationships have been actually disrupted. their actions are likely to recur and will cause Oracle irreparable injury for which there is no adequate remedy at law.S. and violation of the Stored Communications Act.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. constitutes violations of numerous state and federal statutes and codes. receipt of stolen property. As a direct and proximate result of Defendants’ actions. Unless Defendants are restrained by appropriate injunctive relief. but not limited to.C. violation of RICO. 115. as alleged above. unauthorized access to computers. As a result of Defendants’ acts.S.S. Defendants’ conduct was wrongful by a measure beyond the fact of the interference itself. for their enterprise software. Defendants gained unauthorized access to Oracle’s password-protected Customer Connection support website through false or improper credentials. § 1962. but not limited to. including.S. wire fraud. copied Oracle’s intellectual and contractual property. Penal Code § 496. 117. in some cases. loss of profits from sales to current and potential customers of Oracle support. causing certain current and prospective support clients to contract with Defendants instead of Oracle for their software support and maintenance and. Defendants’ conduct also constitutes trespass to chattels. § 1343. § 1030 et seq. and software products. fraud and related activity in connection with an access device. and used that property to obtain and retain Oracle’s current and prospective clients.C.C. 18 U. unjust enrichment. conversion. 114. §§ 270111.. 18 U.C. Oracle has suffered economic harm. 113. 116.
34 COMPLAINT . and violation of the Stored Communications Act.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. 18 U. and copyrighted Software and Support Materials. wire fraud. unlawful. §§ 2701-11. and unfair competition as defined by California Bus. & Prof. trespass. 119.C. all in an effort to gain unfair competitive advantage over Oracle. & Prof. Penal Code § 496. 123. Penal Code § 502. 121. et seq. In light of Defendants’ conduct.S. receipt of stolen property. conversion. conversion. intentional interference with prospective economic advantage. Defendants’ conduct also constitutes trespass to chattels.C. unauthorized access to computers. 120. violation of the Computer Fraud and Abuse Act. §§ 1030 et seq. but not limited to.S.. Code §§ 17200. Fifth Claim for Relief Unfair Competition . violation of RICO. 18 U. 18 U. Defendants have improperly and unlawfully taken commercial advantage of Oracle’s investment in its confidential. 122. Cal. proprietary.S. and conspiracy. interference with business relationships. Defendants have engaged in unlawful business acts or practices by committing acts including computer fraud. including. § 1962. Defendants’ conduct constitutes violations of numerous state and federal statutes and codes. unjust enrichment.C.Cal. negligent interference with prospective economic advantage. and other illegal acts and practices as alleged above. fraud and related activity in connection with an access device. 18 U. § 1029.C. 18 U. 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.C. Cal. 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. 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. The acts and conduct of Defendants constitute fraudulent. Bus.S.S. § 1343.
35 COMPLAINT . and all copies of such. including. earnings. unless Defendants are enjoined from such unfair competition. unfair. Oracle has an exclusive right to possession and distribution of such property. returning the value of the stolen property itself and any revenue earned from it..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. downloading. As a result of such unfair competition. and copyrighted Software and Support Materials. Oracle has also suffered irreparable injury and. 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. all of which Oracle stored on its computer system. compensation. and should be enjoined from further unlawful. in their possession. Defendants should further be ordered to return all materials taken from Oracle. proprietary. removal. but not limited to. whereby Oracle has no adequate remedy at law. to Defendants’ copying. Defendants intentionally and willfully entered Oracle’s password-protected Customer Connection support website without permission and took possession of Oracle’s property. Sixth Claim for Relief Conversion (By Oracle Against All Defendants) 127. 130. including. Oracle’s confidential. This property is the sole and exclusive property of Oracle. but not limited to. retention. 125. and deceptive business practices. 126. or control. will continue to suffer irreparable injury. or distribution of such property. expressly or impliedly. Defendants’ unfair business practices have unjustly minimized Oracle’s competitive advantage and have caused and are causing Oracle to suffer damages. 128. Oracle at no time consented. 129. which is valuable to Oracle and vital to its continued business operations. Instead of paying Oracle for the use of its property. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. profits. custody.
Since that time. As a direct and proximate result of Defendants’ actions. 133. In addition. Defendants’ wrongful conduct was a substantial factor in causing this harm. 36 COMPLAINT . and the Software and Support Materials on that support system. and other damages in an amount to be proven at trial. and will continue to lose. Oracle is entitled to damages and repossession of the converted property. In addition. Oracle has lost. Allowing Defendants to retain the benefits received as a result of their wrongful acts would unjustly benefit Defendants at Oracle’s expense. Oracle will seek its election of remedies at trial. 135. as described above. its access-restricted internet-based support system. Seventh Claim for Relief Trespass To Chattels (By Oracle Against All Defendants) 136. profits from potential purchasers of Oracle support services and licensees of Oracle software products. or in the alternative. At all times mentioned in this Complaint. Oracle is entitled to restitution of the Defendants’ ill-gotten gains. in an amount to be determined at trial. or in the alternative. Defendants have been in knowing and unauthorized possession and control of such property since at least between September 2006 and the present. Oracle is entitled to an award of the value of the property taken. at the latest. 132.1 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. with interest. Oracle had legal title to and actual possession of Customer Connection. 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. 137. 134. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. 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.
Defendants’ trespass interfered with. 143. and damaged. but not limited to. including Defendants’ interference with Oracle’s business relationships and other unfair business practices. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. Defendants’ trespass and interference proximately caused damage to Oracle. including. the integrity and functionality of Oracle’s computer system and data. damage to the functionality of Oracle’s computer system and data. Oracle is entitled to recover any and all damages it sustained as a result of such trespass. Defendants’ trespass therefore threatens to cause irreparable harm to Oracle. As a result. for which Oracle’s remedy at law is not adequate to compensate it for the injuries inflicted and threatened. as well as Defendants’ trespass on.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. and the Software and Support Materials housed for licensed access through Customer Connection. in an amount to be determined at trial. 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. and conversion of the Software and Support Materials. Defendants will continue to commit such acts and other competitors will be encouraged to sweep Oracle’s website. which took substantial time and money for Oracle to develop. Eighth Claim for Relief Unjust Enrichment/Restitution (By Oracle Against All Defendants) 142. damage to Oracle’s rights to dominion and control over its property. Defendants caused Oracle’s property to greatly diminish in value and deprived Oracle of the intended use of its computer systems. computer fraud concerning. 139. 140. Defendants unjustly received benefits at the expense of Oracle through their wrongful conduct. Defendants intentionally interfered with Oracle’s use or possession of both Customer Connection and Oracle’s related internal databases and systems. Defendants continue to unjustly retain these benefits at the 37 COMPLAINT . and damage to the confidential and copyrighted nature of the information on Oracle’s website. 141.
The wrongful conduct committed pursuant to the conspiracy was a substantial factor in causing this harm. that agreement and/or furthered the conspiracy by cooperating. damage. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. as well as Defendants’ trespass on. Oracle is accordingly entitled to full restitution of all amounts in which Defendants have been unjustly enriched at Oracle’s expense. 38 COMPLAINT . and in conscious disregard of Oracle’s rights. Oracle has suffered injury. As a direct and proximate result of the acts in furtherance of the conspiracy. Defendants did the acts alleged pursuant to. computer fraud concerning. including. loss of profits from sales to current and potential customers of Oracle support services and licenses for Oracle’s software programs. or adopting the acts of the others. 146. It would be unjust for Defendants to retain any value they obtained as a result of their wrongful conduct. 149. and harm. and in furtherance of. loss. and knowingly agreed and conspired with each other to engage in the alleged wrongful conduct. Ninth Claim for Relief Civil Conspiracy (By Oracle Against All Defendants) 145. Defendants’ intentional agreement to commit. oppressive. these wrongful acts was willful. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. intentionally. 147. ratifying. but not limited to. including Defendants’ interference with Oracle’s business relationships and other unfair business practices. 144. Defendants willfully. 148. malicious. and conversion of the Software and Support Materials. and commission of.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. encouraging.
and conversion of the Software and Support Materials. was wrongful in and of itself. as well as Defendants’ trespass on. including. and in conscious disregard of Oracle’s rights. but not limited to. Defendants’ aiding and abetting of these wrongful acts was willful. and harm. As fully described above. 151. and aided and abetted such wrongful conduct. 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. 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. by providing substantial assistance and/or encouraging the others to act. Defendants had full knowledge or should have reasonably known of the true nature of the wrongful conduct of each other Defendant.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. As a direct and proximate result of the aiding and abetting of these acts. 39 COMPLAINT . oppressive. including interference with Oracle’s business relationships and other unfair business practices. loss of profits from sales to current and potential customers of Oracle support services and licenses to Oracle software programs. 153. 150. loss. The wrongful conduct aided and abetted by the Defendants was a substantial factor in causing this harm. Oracle has suffered injury. computer fraud concerning. 154. malicious. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. damage. 152. separately considered. Defendants also aided and abetted the described wrongful conduct of the other Defendants by giving substantial assistance and/or encouragement that.
their officers. servants. including without limitation the Customer Connection website. and those in active concert or participation with any of them from: (1) accessing any Oracle restricted-access or customer website. in furtherance of their unlawful and deceptive scheme as described above. proprietary. for the purpose of sabotaging Oracle’s ability to do business and compete in the market. including data. Defendants have received money as a result of their misconduct. (c) Willfully converting Oracle’s confidential. and that some or all of such money is rightfully due to Oracle. at Oracle’s expense. without Oracle’s authorization. Oracle’s confidential. and. 157. For a preliminary and permanent injunction restraining Defendants. 158. and unlawfully taking commercial advantage of Oracle’s investment in its Software and Support Materials. willfully. agents. 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. and valuable 40 COMPLAINT . including without limitation. therefore. Defendants have obtained business through the use of unlawful conduct including. Since at least September 2006. and copyrighted Software and Support Materials. or using any property obtained from Oracle’s website. distributing. Oracle is entitled. Oracle respectfully prays for the following: A. employees. Prayer For Relief WHEREFORE. (d) Fraudulently accessing and intentionally trespassing on Oracle’s password-protected Customer Connection website. (2) selling. without authorization or consent. and copyrighted Software and Support Materials. internal documents. and attorneys. (b) Improperly. to a full accounting.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. proprietary. but not limited to: (a) Intentionally and/or negligently interfering with Oracle’s prospective economic advantage with its existing and potential customers.
G. C. (4) otherwise engaging in acts of unfair competition and interference with Oracle’s business relationships. For an Order awarding Oracle its attorneys’ fees and costs. fixes. J. internal documents. Court deems just and proper. I. (3) removing. including data. and valuable updates. For an accounting. B. For an Order awarding Oracle such other and further relief as the . and other computer code. fixes. including. patches. under oath. Oracle’s confidential. setting forth in detail the manner and form in which Defendants have complied with the injunction. intentional interference with Oracle’s prospective economic advantage. without limitation.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. 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. K. That the Court order Defendants to pay Oracle punitive damages in a sum to be determined at trial. but not limited to Oracle’s confidential. on the basis of their willful and deliberate unauthorized computer access. and other computer code. aiding and abetting and conspiracy. and other computer code. 41 COMPLAINT For damages to be proven at trial. H. fixes. downloading or copying property from Oracle’s website without Oracle’s authorization. internal documents. and copyrighted Software and Support Materials. For prejudgment interest. proprietary. For an Order directing Defendants to return Oracle’s property. and. For restitution and disgorgement of all ill-gotten gains unjustly obtained and retained by Defendants through the acts complained of here. including. and valuable updates. including data. and copyrighted Software and Support Materials. that Defendants took from Oracle. patches. as set forth in this Complaint. proprietary. D. F. patches.
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