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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 email@example.com firstname.lastname@example.org email@example.com firstname.lastname@example.org 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 email@example.com firstname.lastname@example.org
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
some users logged in with the user names of “xx” “ss” “User” and “NULL. or 4 COMPLAINT . Oracle has found many examples of similar activity. Texas IP address used to access and download Oracle’s Software and Support Materials is connected directly to SAP’s computer network. 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. email address. and downloaded Software and Support Materials even after the customer had dropped its support rights with Oracle. Texas. In some cases. Oracle’s server logs have recorded access through this same IP address by computers labeled with SAP identifiers using SAP IP addresses. This systematic theft of Oracle’s Software and Support Materials did not originate from any actual customer location.” Others used phony email addresses like “test@testyomama. this user information did not match anything: it was fake. 9. The Bryan. to gain access to Oracle’s system under false pretexts.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.” In other cases. SAP employees used the log-in IDs of multiple customers. SAP TN is a company that purports to provide technical support services on certain versions of Oracle’s PeopleSoft and JDE software programs. combined with phony user log-in information. Texas. These “customer users” supplied user information (such as user name. Rather. Indeed. For example.000 unauthorized downloads of Software and Support Materials relating to hundreds of different software programs. Employing these techniques. Oracle to date has identified more than 10. 8. an SAP America branch office location and home of its wholly-owned subsidiary SAP TN. Across its entire library of Software and Support Materials in Customer Connection. 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. including the ones described above. and phone number) that did not match the customer at all. SAP blended log-in information from multiple customers with fake information. In many instances.. like Metro Machine Corp. SAP users effectively swept much of the contents of Oracle’s system onto SAP’s servers.com” and fake phone numbers such as “7777777777” and “123 456 7897. 7. For example.
and support technicians. consulting. 12. Not by coincidence. Edwards World Solutions. 10. is developing a ‘super set’ of applications. an independent software support company founded by former PeopleSoft software engineers. Inc. * 11. Oracle said it has thousands of developers building the new application suite. One industry analyst stated that. a software company acquired by PeopleSoft. called Project Fusion. aimed at taking market share from No. As a result of this illegal activity. 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. increasing Oracle’s potency as a competitor to SAP AG for enterprise applications software. 5 COMPLAINT . in 2003. Oracle officially became a player on SAP’s turf. SAP’s own statements confirmed it. 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. In January 2005. through SAP America. copyrighted Software and Support Materials. (b) consulting relating to the implementation and operation of the software.” 13. SAP apparently has now warehoused an extensive library of Oracle’s proprietary. SAP AG acquired SAP TN. “Oracle Corp. developers. SAP AG’s hasty acquisition of SAP TN was widely perceived as a response to the new competitive threat 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 were just about to become. “After the acquisition of PeopleSoft earlier this year. 1 ranked SAP. As explained below. SAP AG spokesman Bill Wohl vowed that SAP AG would use SAP TN to “keep the pressure on 1 “JDE” refers to J. new customers of SAP TN – SAP AG’s and SAP America’s software support subsidiary whose sole purpose is to compete with Oracle. Oracle had previously announced that in January 2005 it would complete its acquisition of PeopleSoft. revenue comes from three basic activities: (a) license of the underlying software.D.” Another mused. and (c) support contracts to keep the software updated and upgraded. and support. * * In the world of enterprise software applications.
· A systematic pattern of “sweeping” Oracle’s Customer Connection support website from SAP TN servers just days before. SAP appeared to focus more on growing the SAP TN sales force rather than investing in or expanding SAP TN’s tiny development team. Bill McDermott. with indications that this number may go significantly higher if traced further back in time.” 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.000 illicit downloads from Customer Connection between September 2006 and January 2007.” and a sign that “SAP has taken the gloves off. As reported in industry publications. explicitly designed to transition customers away from Oracle products and onto the SAP software platform. SAP TN did not appear to have the development capability to meet the support commitments advertised in the “Safe Passage” brochures at any price. It certainly did not match Oracle’s investment in development resources. SAP advertised this strategy as its “Safe Passage” program. much less the 50% discount promoted by SAP.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. 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. Bill McDermott. a program aimed at siphoning off valuable software maintenance revenue from Oracle and persuading Oracle customers to switch software products [to SAP].” Although SAP America President and CEO. Nevertheless. or the day of. committed to throw “a lot of additional resources” behind SAP TN (which consisted of only 37 employees in total). SAP America’s CEO. industry observers deemed the “Safe Passage” program “measurably more aggressive. 14.” In connection with the SAP TN acquisition. following: · More than 10. the . SAP stole much of the Software and Support Materials directly from Oracle. 15. crowed “There’s nothing that I love more than to win. the 6 COMPLAINT SAP’s unlawful copying and theft includes. Indeed. Publicly. by way of example. SAP TN’s services “form[ed] the basis of [SAP AG’s] Safe Passage initiative. or even come close to it.
its many employees. clearly-marked internal proprietary Oracle support documents not available even to licensed. or in some cases on behalf of former Oracle customers with no access rights to Oracle’s Software and Support Materials whatsoever. 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. unlawful. · On multiple occasions. and its customers. expiration of a new SAP TN customer’s support contract with Oracle. Oracle has no adequate remedy at law for the harm threatened and caused by these acts. · Accessing and downloading Software and Support Materials across multiple product lines in multiple lines of business available on the Customer Connection support website. SAP has taken Oracle’s Software and Support Materials and apparently used them to insinuate itself into Oracle’s customer base. in the purported name of customers that had never licensed those products and had no legal access to them. and theft of. · The improper access to. 7 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 16. to try to “keep the pressure on Oracle. In short.” SAP has been engaged in a systematic program of unfair. the indiscriminate. authorized customers or through normal access to Oracle’s Customer Connection system. and to attempt to convert these customers to SAP software applications. 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. These illegal business practices threaten to cause irreparable harm to Oracle. Through its illegitimate and illegal business practices. and deceptive business practices that continues to this day.
The corporate relationship of the three named defendants is set forth in the chart below. with its only place of business in Redwood City. County of San Mateo. SAP TN is a wholly-owned subsidiary of SAP America. State of California. Inc. Texas. 23. Pennsylvania. OIC is a California corporation duly authorized to do business in the State of California. Oracle USA is the successor to PeopleSoft USA. with its principal place of business in Redwood City. 21. THE PARTIES 17. SAP TN is a Texas corporation with its principal place of business in Bryan. State of California. Oracle Corporation is a Delaware corporation with its principal place of business in Redwood City.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. State of California. (“PeopleSoft”) and JDE. Oracle USA is a Colorado corporation duly authorized to do business in the State of California.. 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. SAP America is a wholly-owned subsidiary of SAP AG. 18. County of San Mateo. Germany. Oracle USA develops and licenses database and applications software programs and provides related services. 22. OIC is the owner of the copyrights at issue in this action. 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. 8 COMPLAINT . Directly and through its subsidiaries. Walldorf. 20. Oracle Corporation develops and licenses database and applications software programs and provides related services around the world. 19. Oracle Corporation and Oracle USA are the licensees of the copyrights at issue in this action. County of San Mateo.
unincorporated association. California. representative. whether individual. partner. Oracle will amend this Complaint to allege their true names and capacities when ascertained. Subsidiary) Oracle is currently unaware of the true names and capacities of Does 1 through 50. SAP America and SAP TN advertise. service. SAP AG (German Parent Corporation) SAP America (Wholly-owned U. alter ego. partnership. Defendants all are doing business in and/or have directed their activities at California. SAP AG also holds an annual meeting of its Board of Directors in Palo Alto. Similarly. was the agent. through its 100% ownership of SAP TN. 25. sell. license. parent. By way of example only. specifically in this judicial district. SAP AG negotiates and enters into software license and support agreements directly within the United States and. through its 100% ownership of both SAP America and SAP TN. affiliate.S. inclusive. corporation. employee. joint venturer. or co-conspirator of the others. SAP America had both the right and authority to control the actions of SAP TN. subsidiary. promote. and specifically this judicial district. had full knowledge of and gave substantial 9 COMPLAINT . and finances the sales and promotional activities of both SAP America and SAP TN throughout the United States and in California. 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. Subsidiary) SAP TN (Wholly-owned U. each of the Defendants. 27. or otherwise.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. At all material times. At all material times. 26. servant. SAP AG had both the right and the authority to control the actions of both corporations. and support customers in California and in this judicial district. and therefore sues these defendants by such fictitious names.S. at all material times. including Does 1 through 50.
partnership. §§ 101. VI. Oracle is the world’s largest enterprise software company.C. IV. each was acting within the scope of such agency. affiliation.C. Oracle’s first cause of action arises under the Computer Fraud and Abuse Act. 3-2 (c) and (d). § 1030(g) and 28 U. This Court has supplemental subject matter jurisdiction over the pendent state law claims under 28 U. Oracle will seek to amend this Complaint to add claims for copyright infringement under the Copyright 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 assistance to the alleged activities. representation. Oracle’s Software and Support Materials 32. 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.S. 29. pursuant to 28 U.. and the first to receive J. employment. and each is legally responsible for the acts and omissions of the others. III.S. FACTUAL ALLEGATIONS A.C. and in doing the things alleged.S.C.S.R. and this Court has subject-matter jurisdiction over this action pursuant to 18 U. JURISDICTION 28. service. § 1338. or conspiracy. §§ 1030 et seq. because a substantial part of the events giving rise to the dispute occurred in this district. et seq. INTRADISTRICT ASSIGNMENT 31.C. Power & Associates’ global certification for outstanding service and support based 10 COMPLAINT .D.S. VENUE 30. § 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.. 17 U. § 1331. and the Court will have subjectmatter jurisdiction over those claims pursuant to 28 U. joint venture. 18 U. Venue in this district is appropriate. Assignment is proper in this division under Civil L.C. when the relevant copyright registrations issue. V. In addition.C. and the Court has personal jurisdiction over each of the parties as alleged throughout this Complaint. a substantial part of the property that is the subject of the action is situated in this district. § 1391.S.S.
” To download a SAR. 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. (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. 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. WITHOUT LIMITING THE FOREGOING. and (3) no modifications of any Documents are made. In addition. the user must click on a button indicating that it accepts these terms. such as a Software Application Request (“SAR”) through the SAR Search Web Application. Use for any other purpose is expressly prohibited. 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. COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED.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. product or upgrade announcements. 42. agree to additional legal restrictions. 41. The Legal Download Agreement further restricts use of documents downloaded from the website: Permission to use Documents (such as white papers. press releases. These terms notify the user that the software available to download from Oracle is Oracle’s copyrighted material. Any reproduction or redistribution of the Software not in accordance with the License Agreement is expressly prohibited. 13 COMPLAINT . users accessing specific materials. software action requests. datasheets and FAQs) from this server (“Server”) is granted. 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”). provided that (1) the below copyright notice appears in all copies and that both the copyright notice and this permission notice appear.
000 business applications software customers throughout the world. Rather than improve its own products and offerings. SAP AG instead considered how to undermine Oracle. As SAP America’s Vice President of Operations. the combination revitalized Oracle overnight as a competitor in the business software applications business. On January 7. he even claimed to wish Oracle “good luck” in competing with SAP AG. As SAP AG reeled.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. testified on June 23.000 people joining by Webcast and phone. despite not owning any of the software code for. events unfolded at a rapid pace: eleven days after its announcement. these same products. Oracle launched the newly-united company and unveiled. 45. how the nearly 50. Oracle Threatens To Unseat SAP 43. or intellectual property rights to.” 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. 44. SAP AG suddenly found itself in a far different competitive environment than the one in which it had grown comfortable. but now Oracle offered a deeper. Oracle would “not [be] a competitor which could really hurt us. 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. 46. 2004 at the trial on the Department of Justice’s unsuccessful effort to block Oracle’s acquisition of PeopleSoft.000-strong combined workforce of Oracle and PeopleSoft would provide unparalleled innovation and support to 23. But SAP AG had no answer for the business proposition the new Oracle offered. broader product line of enterprise applications software programs to compete against SAP AG. and geographic and product scope. 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. size. at its headquarters with more than 48. SAP AG CEO Henning Kagermann claimed that even with PeopleSoft. 14 COMPLAINT . Richard Knowles. Not only do many SAP AG customers use Oracle’s superior database software programs. 2005.
but – with the Oracle/PeopleSoft 15 COMPLAINT . Oracle. headquartered in Bryan. it instead focuses on simply keeping the software up and running for an annual fee. SAP TN was a small software services company.” D. JDE. It claimed to compete with PeopleSoft. often outdated. SAP Responds To Oracle Competition With Its “Safe Passage” Scheme 48. 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. In December 2004. in December 2004. but a calculated competitive move. however. To retain full control over every detail of its scheme to lure away customers from Oracle. Acquiring SAP TN was not a mere investment by SAP AG. So SAP AG had to make the price right. 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. SAP AG bought “another arrow in its quiver to hunt after Oracle’s customers. SAP TN 47.” 49. SAP AG has refused to disclose the terms of its SAP TN purchase. As one industry journalist explained.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. As described in a glossy spread in a leading industry publication. 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 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. SAP AG’s “front man for SAP AG’s mergers and acquisitions strategy. 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. just weeks before Oracle would close the PeopleSoft acquisition. and later. SAP TN president Andrew Nelson got “the magic phone call” from Jim Mackey. 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. As one industry observer put it.” Aligning with SAP AG made little sense for SAP TN.
at the SAP AG annual meeting. SAP AG would try to use SAP TN as a means of “speeding-up” the migration of PeopleSoft and JDE users to SAP platforms.” A month later. SAP AG’s top executives unveiled SAP AG’s acquisition of SAP TN as the centerpiece of its new “Safe Passage” scheme. admitted that the SAP TN acquisition was “an integral part” of SAP’s Safe Passage program. Colin Sampson. 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 April 2005. SAP TN agreed to the deal and cast its lot with SAP AG. 50. Andrew Nelson. SAP America CEO Bill McDermott claimed “The SAP Safe Passage offering gives companies an affordable way to protect their current investments. Bill McDermott. 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.” 16 COMPLAINT . in barely a month. in connection with converting Oracle customers to SAP support (via SAP TN). identified SAP TN as instrumental to the parent company’s “Safe Passage” program. SAP AG’s CEO. Second. SAP would offer cut-rate pricing combined with the promise of essentially unlimited future support to former PeopleSoft and JDE support customers. We want them to be successful. which in turn was part of SAP’s “ongoing strategy to compete with Oracle. The CEOs stated the proposition more bluntly. publicly vowed to bankroll this effort to undermine Oracle by putting “a lot of additional resources into TomorrowNow. 2005. stated. After the acquisition. to lure the support business over. Henning Kagermann. As SAP AG Managing Director Alan Sedghi admitted.” 51. First.” The Senior Vice President and Chief Operating Officer of SAP Asia Pacific. publicly indicating that SAP TN was authorized and intended to implement SAP AG’s goals. SAP would aggressively campaign to migrate those customers to an SAP enterprise software platform. On January 19. ease integration with SAP NetWeaver(TM) and begin the process of innovating their businesses today.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.” And SAP TN certainly knew its role was to achieve SAP AG’s ends: as SAP TN’s CEO. SAP America’s CEO. “We're owned by SAP. 52.
SAP AG did not simply sit back and leave the recruiting of potential Safe Passage customers to SAP TN’s sales force.” 54. Beginning in January 2005. it took a hands-on approach.” To exploit the fear it intended to create. 17 COMPLAINT . officially “bundled” with SAP AG enterprise software as a centerpiece of the Safe Passage program. SAP provides solutions. technology and maintenance services. SAP AG’s “second wave” included “an intensive customer recruitment campaign.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 implemented Phase One immediately.” 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. consider another option: SAP. Instead. offering significantly lower cost maintenance alternatives to Oracle customers running PSFT/JDE solutions” through 70. JD Edwards. SAP sales representatives unleashed a torrent of marketing materials designed to exacerbate and leverage perceived. An April 2005 SAP AG press release apparently aimed to increase perceived doubt among Oracle customers by announcing a “second wave” of “Safe Passage. To implement Phase Two of its plan (luring Oracle customers to the SAP enterprise software platform). These lower cost alternatives advertised by SAP AG were to come directly through SAP TN. 55.” (emphasis supplied) SAP America’s website promises that “SAP and TomorrowNow can cut your maintenance costs by as much as 50% through 2015. To give teeth to these commingled sales efforts. PeopleSoft and JDE customer uncertainty about the prospects for long-term.000 direct mail solicitations to Oracle customers. and Siebel customers – If Oracle’s options have you worried. quality support from Oracle. If customers declined to convert to SAP TN. albeit unfounded.” and elsewhere says that “Safe Passage maintenance and support are delivered worldwide through TomorrowNow. the SAP AG sales personnel would pressure the customers to drop Oracle products outright in favor of SAP AG’s suite. SAP AG offered maintenance support through SAP TN. It deployed its salespeople to contact potential customers and push them to switch to SAP TN’s services.
At the same time. Léo Apotheker. technology. 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. investment protection and a clear road map to the next generation of business software. Henning Kagermann. as Oracle continued to take market share and expand its product offerings. 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. SAP AG boasted in a press release that more than 200 customers had signed up for Safe Passage. In October 2005. As reported on Forbes. companies and corporate cultures. maintenance services. SAP grew more desperate. SAP announced it would extend its Safe Passage program to Siebel customers. SAP AG CEO Henning Kagermann conceded that SAP had lost as much as 2% market share to Oracle. 58.1 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. including through its September 12. SAP AG’s CEO. and which it claimed “offers companies SAP solutions.” including because SAP AG “extended the program in order to offer it as well to Siebel 18 COMPLAINT .com after Oracle’s announcement of its impending Siebel acquisition. SAP AG continued to tout the success of Safe Passage. 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. boasted that Safe Passage “continues to do really well. round the clock Siebel code support within a few weeks of Oracle’s acquisition announcement remained a mystery. By July 2006. 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. .” 57. Bill McDermott. “SAP AG plans to announce .” How SAP could offer instantaneous. SAP America President and CEO. SAP executives touted the Safe Passage program’s limited success in its first year. curiously.” but its services were expanded to support more Oracle product lines and a wider range of customers. By March 2006.” SAP’s “cheaper price” (referred to elsewhere as “cut rate” support) continued at “50 cents on the dollar for maintenance fees. and more aggressive. However. SAP AG’s President of Customer Solutions and Operations. . In a July 2006 earnings call. 2005 announcement that it would acquire Siebel Systems.
and purported to add full support for an entirely different product line – Siebel – with a wave of its hand. “30-minute response time. 61. F. Oracle has now solved this puzzle. patches. 62. even after having expanded its ranks to 150 employees. 24x7x365” on software programs for which it had no intellectual property rights. SAP unlawfully accessed and copied Oracle’s Software and Support Materials. Apotheker claimed that SAP now had “a global network of [SAP TN] capabilities” – enough to “gain significant traction. To stave off the mounting competitive threat from Oracle. most remarkably. bug fixes. simply did not add up. SAP continued to offer this comprehensive support to hundreds of customers at the “cut rate” of 50 cents on the dollar. The SAP Solution: Stolen Passage 1. maintains a development force of more than 15. Oracle Finds A Suspicious Pattern To analyze and improve on its industry leading support services.000 software and support engineers to create and help implement the code fixes. patches. and the logic. and other labor-intensive support items that a customer would need to maintain useful. and updates that comprise the advanced support services required by Oracle’s licensed customers. “customized ongoing tax and regulatory updates. Although SAP put a brave face on its ability to compete with the increasingly potent Oracle applications offerings.” E.” “full upgrade script support. 60. A Deal Too Good To Be True 59.” and. could actually develop and offer the hundreds of regulatory updates. by comparison. without infringing on Oracle’s intellectual property. some industry analysts wondered whether a small company like SAP TN. Oracle. and in conjunction with opening new SAP TN offices around the world. It was not clear how SAP TN could offer.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. The economics.” “fixes for serious issues. optimally functioning Oracle software. as it did on its website and its other materials. 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 .” By extending the Safe Passage program to Siebel customers. To compound the puzzle.
In the course of this investigation. authorized use of Customer Connection. a user purporting to be that customer. to take a copy of them all. In late 2006. Given the extreme speed at which the activity occurred. 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. Indeed.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 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. 20 COMPLAINT . including dozens. Frequently. Oracle soon discovered that many of these “customers” had taken massive quantities of Software and Support Materials beyond their license rights. apparently. unexplained spikes in the number of customers on the online support website who had clicked the “No. And. employing the customer’s log-in credentials. Some of these apparent customer users even downloaded materials after their contractual support rights had expired. Oracle discovered a pattern. in the month before a customer’s Oracle support expired. continue search” option. continue search” option. 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. these clicks could not reflect real responses from any human customers actually reading the solutions they had accessed. 2. Oracle also discovered that the downloaded Software and Support Materials included internal documents not available even to licensed customers and not available through normal. 63. Oracle noticed huge. 64. hundreds. These clicks numbered in the thousands for several customers. 65. Oracle regularly compiles this data to assess whether its system helped customers resolve their support issues. over and over again. Instead. the support system responds by offering the customer further options. and Oracle discovered that each response – each answer by users pretending to be the customer – occurred in a matter of seconds or less. would access Oracle’s system and download large quantities of Software and Support Materials. If the customer selects the “No.
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. V. · 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. V.P. who is reflected as the person performing many of the downloads at issue. · Not to access the customer support system if it is not the customer’s authorized and designated Oracle technical support contact. International Sales. SAP TN’s management. (5) Nigel Pullan. V. former PeopleSoft employees who work for SAP. In addition. distribute.P. · That the customer username and password are for the customer’s sole use in accessing this support server. appear to have applied their familiarity with the Customer Connection website to directly participate in and perfect the illegal 22 COMPLAINT . · Not to directly or indirectly. Edwards Support. V. including: (1) Andrew Nelson. North American Sales. or lease the Software or Documentation. use. Global PeopleSoft Support. or Oracle.P. (2) Bob Geib.P. sublicense. JDE. Of SAP TN’s tenmember management team. formerly worked at PeopleSoft and JDE.P. · That the Materials on the support website are confidential information subject to existing confidentiality agreements. Quality. rent. (3) Laura Sweetman. and (6) Shelley Nelson. · 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. (4) Mel Gadd. V. Global J. President and CEO. and a significant number of its employees. SAP TN has intimate familiarity with these important restrictions and conditions relating to Oracle’s Software and Support Materials. or third party training. or any portion thereof. for third party use. relicense. disclose.D. such as Wade Walden. six list prior employment experience with PeopleSoft.
and distribute these works. Mortice Kern Systems.. Stearns & Co. Herbert Waldman. Specific Examples Of SAP TN’s Unlawful Customer Downloads SAP TN’s improper access to.A. Berri Limited. Metro Machine Corp. By way of example 24 COMPLAINT .. Smithfield Foods. §§ 101 et seq. Grupo Costamex. Merck & Co. VSM Group AB.. and in conscious disregard of Oracle’s protected intellectual property and the integrity of its computer systems. S. publish. 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. create derivative works. Oracle’s Customer Connection website is too pervasive. to comprehensively detail here..S.. 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. SPX Corporation. OCE Technologies. Bear.. NGC Management Limited. Inc.V. Oracle has uncovered unlicensed downloads linked to SAP TN on behalf of numerous customers. Texas Association of School Boards. Interbrew UK. 75. Ronis.S.C. AbitibiConsolidated. With literally thousands of software programs available for licensing. SAP TN’s acts violated Oracle’s exclusive rights to use. Honeywell International. offer for sale. Fuelserv Limited. 74. and impose strict confidentiality requirements. display. and covers too many individual violations. B. Laird Plastics. Border Foods. § 501 and also willful and intentional copyright infringement under 17 U. 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. Inc. and taking from.C. and therefore committed its theft knowingly and intentionally. § 506. 4.S. National Manufacturing. SAP TN reviewed and agreed to the terms and conditions on Oracle’s support website before proceeding. Stora Enso. and Yazaki North America. Distribution & Auto Service. Helzberg Diamonds. Abbott Laboratories. Accordingly. including 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 support only for products that a company has licensed. reproduce.C.. 17 U. Such acts constitute copyright infringement under 17 U.
In the approximately three and a half year period before Honeywell switched to SAP TN. Merck’s support rights for its JDE software products expired on January 1. 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. Honeywell International (“Honeywell”) is listed on SAP TN’s website as a client. Many of these “Merck” downloads came directly from an IP address in Bryan. a user employing Honeywell’s log-in ID downloaded over 7. after switching to SAP TN. Oracle sets forth below illustrative instances of SAP TN’s illegal conduct regarding a few of its customers. This unlawful downloading even stretched across product families.000 of these downloads related to JDE software products for which Merck had no license. Honeywell used and licensed PeopleSoft software applications. Most of these excessive downloads came during the course of four days.000 of the Software and Support Materials taken in this period were solutions that Honeywell was not licensed to take at all. users purporting to be “Merck” logged into the Oracle support system and downloaded over 9. 76. But.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. In the three months prior to that date. during which “Honeywell” was downloading almost 1800 solutions per day. In one specific library containing solutions for Enterprise One software. Merck. Wade Walden – a former PeopleSoft employee now employed by SAP. More than 5. Over 2. 25 COMPLAINT .000 distinct Software and Support Materials for JDE software. (“Merck”).000 Software and Support Materials in less than two weeks in January 2007. 2007 and nearly 400 more the next day. 2007. Then. 77. one of the largest pharmaceutical companies in the world. Merck & Company. 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. Users logging into Oracle’s support system with Merck’s credentials continued to download Software and Support Materials into March 2007. the unauthorized downloads did not stop there. Inc. but Oracle discovered users downloading JDE products with Honeywell’s credentials. Honeywell. “Honeywell” downloaded over 450 distinct unlicensed solutions on January 16. licenses and receives support for many Oracle software products.
and could serve no legitimate or lawful business purpose.000 distinct items for which OCE had no license. “TNL-02. 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. (“OCE”) is located in the Netherlands and appears as a customer on SAP TN’s website. in some cases. and Real Estate Management – none of which make sense coming from a European customer in support of its European business. Texas. many of these “OCE” users entered phony identification information. These downloads included over 3. “TN-DL03. and neither OCE nor SAP TN have any license.” Neither Merck nor SAP TN had any license.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 even “xxx xxx xxxx. including specifically to a computer with SAP TN’s initials in the title.” 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. 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.” Similar to the other customer examples. authorization or other right to access and download the 5. Like the other companies. Homebuilder Management. Canadian Payroll. since OCE does not run many of the software programs to which these downloads relate. users employing OCE’s credentials downloaded a large number of Oracle products relating to US Payroll. using names such as “xx” “ss” and “NULL. OCE-Technologies B. or other right to access and download these Software and Support Materials. 26 COMPLAINT .000 distinct Software and Support Materials. In the months leading up to the expiration of OCE’s support rights for its Oracle products.000-plus unlicensed Software and Support Materials from Oracle. such as the name “user” and phone numbers such as “123 456 7897. From December of 2006 to January of 2007.” In many cases. and some were traced to a computer with SAP TN’s initials in the title.” “9999999999. 78.V. authorization. OCE.
SPX.700 distinct Software and Support Materials for which SPX had no license. users logging into Oracle’s support system with Metro Machine’s credentials continued to download Software and Support Materials into March 2007. illegally downloaded thousands of fixes and updates from Oracle’s restricted customer support website. these users logged in using SPX credentials.000 distinct Software and Support Materials. originated from the same IP address belonging to SAP TN.000 distinct Oracle Software and Support Materials (far more than SPX could legitimately access or use). users purporting to represent Metro Machine logged onto Oracle’s support servers and downloaded nearly 6. users purporting to represent SPX accessed and downloaded over 8. but used fake identification information like the name “NULL” and phone numbers like “7777777777” and “999 999 9999. SPX averaged approximately eleven downloads per month from Oracle’s support system. SAP TN now claims to have delivered thousands of fixes and more than 800 tax and regulatory updates to Oracle’s former customers. Then. Oracle has traced these illegal and unauthorized downloads to the same SAP TN IP address employed for the Honeywell downloads described above. SAP AG and SAP America directed this 27 COMPLAINT .” 80. Metro Machine.” Many of these SPX downloads. 2006 were Software and Support Materials related to unlicensed Payroll software. These SPX downloads included over 1. In addition.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. like the others. In the month before Metro Machine dropped its support rights with Oracle. (“Metro Machine”) dropped all Oracle support effective on January 1. For the nine month period prior to October 2006. 2006 and became an SAP TN customer. Not coincidentally. Over 300 distinct downloads just on November 30. Nearly 400 of those downloads related to software programs that Metro Machine had not licensed from Oracle. SAP Adds The Ill-Gotten Gains To Its Coffers 81. listed on its website. SAP TN. In some cases. 2007 and switched to SAP TN. “tn-wts01. at SAP AG’s and SAP America’s direction. G. and some were traced to a computer with SAP TN’s initials in the title. SPX Corporation (“SPX”) dropped all Oracle support on December 10. as reflected on SAP TN’s website. Metro Machine Corp. between October and December 2006.
18 U.C. § 1030(a)(5)(A)(i) by knowingly causing the transmission of a program. including but not limited to Oracle’s Software and Support Materials.S.C. in addition to the irreparable harm caused by Defendants’ unfair competition. and by means of such conduct furthered the intended fraud and obtained one or more things of value. § 1030(a)(4) by knowingly. and prospective customers and the associated license and support revenue to artificially inflate its market share.C. 85.C. or command and as a result intentionally causing damage without authorization to a protected computer owned by Oracle. 83. SAP has thereby caused significant damage to Oracle through its SAP TN subsidiary. § 1030(a)(2)(C). Using Oracle’s own protected property to unfairly compete against and undercut Oracle. ratified it. trespass on Oracle’s support website.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. 28 COMPLAINT . Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. interference with Oracle’s business relationships. without authorization or by exceeding authorized access to such a computer.S. and with intent to defraud Oracle. information. code. and by obtaining information from such a protected computer. and never disavowed it. First Claim for Relief Violation of Federal Computer Fraud and Abuse Act (18 U. §§ 1030(a)(2)(C) & (a)(4) & a(5)) (By Oracle Against All Defendants) 82. without authorization or by exceeding authorized access to such a computer. Defendants have violated the Computer Fraud and Abuse Act. by intentionally accessing a computer used for interstate commerce or communication.S. 84. current. Defendants have violated the Computer Fraud and Abuse Act.S. accessing a protected computer. Defendants have violated the Computer Fraud and Abuse Act. SAP has illegally converted Oracle’s former. 18 U. 18 U. and related computer fraud.
including. in any event. data. fraudulently. 91. recklessly or without due regard for their actions. a means of accessing Oracle’s computers. and without permission providing. computer system. or assisting in providing. but. 29 COMPLAINT . §§ 1030(a)(5)(A)(ii) & (iii) by intentionally accessing a protected computer without authorization. 87.1 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.Cal. in an amount well over $5000 aggregated over a one-year period. 88. and files from Oracle’s computers. 92. Defendants have violated the Computer Fraud and Abuse Act. 18 U. and/or computer network.C. 89. The computer system or systems that Defendants accessed as described above constitute a “protected computer” within the meaning of 18 U. taking.C. fraudulently. Unless restrained and enjoined. 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.S. Second Claim for Relief Computer Data Access and Fraud Act . Oracle has suffered damage and loss by reason of these violations.S. Oracle’s remedy at law is not adequate to compensate it for these inflicted and threatened injuries.C. harm to Oracle’s data. § 1030(g). § 1030(e)(2). causing damage to Oracle. 93. Defendants have violated California Penal Code § 502(c)(6) by knowingly. Penal Code § 502 (By Oracle Against All Defendants) 90. Defendants’ unlawful access to and theft from Oracle’s computers also have caused Oracle irreparable injury. accessing. Defendants have violated California Penal Code § 502(c)(3) by knowingly.S. entitling Oracle to remedies including injunctive relief as provided by 18 U. copying. programs. computer system. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. and without permission. and making use of programs. Defendants will continue to commit such acts. without limitation. and/or computer network. Defendants have violated California Penal Code § 502(c)(2) by knowingly and fraudulently.
Had Defendants refrained from engaging in the unlawful and wrongful conduct described in this complaint. and without permission accessing. Defendants have violated California Penal Code § 502(c)(7) by knowingly. computer system. As a direct and proximate result of Defendants’ unlawful conduct within the meaning of California Penal Code § 502. Oracle has also suffered irreparable injury from these acts. or causing to be accessed. 98. Oracle owns the data that comprises the Software and Support Materials obtained by Defendants as alleged above. Oracle is therefore entitled to punitive damages. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. and due to the continuing threat of such injury. and/or computer network. 95.1 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. has no adequate remedy at law. Defendants have caused damage to Oracle in an amount to be proven at trial. entitling Oracle to injunctive relief. Oracle has an expectancy in continuing and advantageous economic relationships with current and prospective purchasers and licensees of Oracle’s support services and software. there is a 30 COMPLAINT . Oracle is also entitled to recover its reasonable attorneys’ fees pursuant to California Penal Code § 502(e). Third Claim for Relief Intentional Interference With Prospective Economic Advantage (By Oracle Against All Defendants) 99. 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. 96. Oracle’s computers. These relationships contained the probability of future economic benefit in the form of profitable support service contracts and software licenses. fraudulently. 100. 97.
including. renewed. Cal. § 1962. and without the cost of competing fairly by independently developing the same support materials. copied Oracle’s intellectual and contractual property. violation of RICO. 104. 18 U. 106.C.S. wire fraud..C.C. 18 U. 18 U. 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. loss of profits from sales or licenses to 31 COMPLAINT . or expanded support contracts and software licenses with Oracle rather than Defendants. and conspiracy. constitutes violations of numerous state and federal statutes and codes. Penal Code § 496. § 1343. unauthorized access to computers. causing certain current and prospective support clients to contract with Defendants instead of Oracle for their software support and maintenance and. including. as alleged above. These acts were undertaken by Defendants to obtain for themselves the software support contract revenue at Oracle’s expense. the above-described relationships have been actually disrupted. and ultimately to migrate such customers away from Oracle’s software programs and onto their own. unjust enrichment. On information and belief. receipt of stolen property. Defendants’ conduct was wrongful by a measure beyond the fact of the interference itself. Cal. Oracle has suffered economic harm.S. Penal Code § 502. conversion. § 1030 et seq.C. 102. for their enterprise software. in some cases. § 1029.1 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. 18 U. but not limited to. 103. Defendants’ conduct also constitutes trespass to chattels. 105. and used that property to obtain and retain Oracle’s current and prospective clients. §§ 270111. Defendants gained unauthorized access to Oracle’s password-protected Customer Connection support website through false or improper credentials. This conduct. and violation of the Stored Communications Act. violation of the Federal Computer Fraud and Abuse Act. As a result of Defendants’ acts.S.S. As a direct and proximate result of Defendants’ actions.C. but not limited to. 18 U. fraud and related activity in connection with an access device.S.
and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. there is a substantial probability that Oracle support customers would have initiated. Defendants knew or should have known about the economic relationship. was willful. 110. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. Defendants’ wrongful conduct was a substantial factor in causing this harm. oppressive. or expanded support contracts and software licenses with Oracle rather than Defendants. Had Defendants refrained from engaging in the unlawful and wrongful conduct described in this complaint. malicious. 108. renewed. 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. Unless Defendants are restrained by appropriate injunctive relief. 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 current and potential customers of Oracle support services and software programs. 112. their actions are likely to recur and will cause Oracle irreparable injury for which there is no adequate remedy at law. 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. they used Oracle’s Software and Support Materials to obtain and retain for themselves software 32 COMPLAINT . as described above. 107. Defendants failed to act with reasonable care. Defendants’ interference with Oracle’s prospective economic advantage with its current and future customers. Instead. 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. 111.
Cal. Defendants’ conduct was wrongful by a measure beyond the fact of the interference itself.S.S. maintenance. but not limited to. conversion. 117. causing certain current and prospective support clients to contract with Defendants instead of Oracle for their software support and maintenance and. 33 COMPLAINT . 18 U. in some cases. their actions are likely to recur and will cause Oracle irreparable injury for which there is no adequate remedy at law. unjust enrichment. This conduct. receipt of stolen property. 115. §§ 270111. copied Oracle’s intellectual and contractual property. including.S. and used that property to obtain and retain Oracle’s current and prospective clients. and conspiracy. Penal Code § 502. Unless Defendants are restrained by appropriate injunctive relief. wire fraud.C. 18 U. § 1343. 18 U. and software products. Cal. unauthorized access to computers. including. loss of profits from sales to current and potential customers of Oracle support. as alleged above. Defendants’ wrongful conduct was a substantial factor in causing this harm. fraud and related activity in connection with an access device. § 1962. 114. for their enterprise software. the above-described relationships have been actually disrupted. 18 U. violation of the Federal Computer Fraud and Abuse Act.C. 113. and violation of the Stored Communications Act. but not limited to.S.S. Penal Code § 496. § 1029. As a result of Defendants’ acts. Defendants gained unauthorized access to Oracle’s password-protected Customer Connection support website through false or improper credentials. As a direct and proximate result of Defendants’ actions. Defendants’ conduct also constitutes trespass to chattels.C..C. 18 U.C. violation of RICO. § 1030 et seq. 116. Oracle has suffered economic harm.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.
§ 1029. fraud and related activity in connection with an access device.C. The acts and conduct of Defendants constitute fraudulent.C. 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. 34 COMPLAINT .S. et seq.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. conversion. violation of RICO. 18 U.C. Penal Code § 496. and unfair competition as defined by California Bus. conversion. In light of Defendants’ conduct.C. Defendants’ conduct also constitutes trespass to chattels. 121.C.S. Cal. 119. Defendants have engaged in unlawful business acts or practices by committing acts including computer fraud. Code §§ 17200. 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.S. §§ 2701-11. Penal Code § 502. & Prof. violation of the Computer Fraud and Abuse Act. 18 U. 18 U. Bus. unlawful. interference with business relationships. wire fraud. Defendants’ conduct constitutes violations of numerous state and federal statutes and codes. Cal. and conspiracy. unjust enrichment. §§ 1030 et seq. including. and violation of the Stored Communications Act. 123. negligent interference with prospective economic advantage. and other illegal acts and practices as alleged above. and copyrighted Software and Support Materials. but not limited to. & Prof. Defendants have improperly and unlawfully taken commercial advantage of Oracle’s investment in its confidential. § 1343. intentional interference with prospective economic advantage. unauthorized access to computers.S. 122. 120. receipt of stolen property. 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. Fifth Claim for Relief Unfair Competition . § 1962. all in an effort to gain unfair competitive advantage over Oracle. proprietary. trespass. 18 U. 18 U.S..Cal.
including. Defendants should be compelled to disgorge and/or restore any and all revenues. Oracle has also suffered irreparable injury and. Defendants intentionally and willfully entered Oracle’s password-protected Customer Connection support website without permission and took possession of Oracle’s property. downloading. will continue to suffer irreparable injury. and benefits they may have obtained in violation of California Business & Professions Code § 17200 et seq. earnings. expressly or impliedly.. returning the value of the stolen property itself and any revenue earned from it. or distribution of such property. unfair. Instead of paying Oracle for the use of its property. or control. in their possession.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. and deceptive business practices. 126. This property is the sole and exclusive property of Oracle. retention. 35 COMPLAINT . to Defendants’ copying. Sixth Claim for Relief Conversion (By Oracle Against All Defendants) 127. compensation. and should be enjoined from further unlawful. unless Defendants are enjoined from such unfair competition. including. profits. removal. all of which Oracle stored on its computer system. Oracle at no time consented. whereby Oracle has no adequate remedy at law. custody. proprietary. and all copies of such. 128. but not limited to. Defendants should further be ordered to return all materials taken from Oracle. 129. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. 125. As a result of such unfair competition. but not limited to. Oracle’s confidential. Defendants’ unfair business practices have unjustly minimized Oracle’s competitive advantage and have caused and are causing Oracle to suffer damages. which is valuable to Oracle and vital to its continued business operations. Oracle has an exclusive right to possession and distribution of such property. and copyrighted Software and Support Materials. 130.
and will continue to lose. Seventh Claim for Relief Trespass To Chattels (By Oracle Against All Defendants) 136. Since that time. Defendants have been in knowing and unauthorized possession and control of such property since at least between September 2006 and the present. 36 COMPLAINT . 134. profits from potential purchasers of Oracle support services and licensees of Oracle software products. In addition. as described above. with interest. 137. 133. 135. or in the alternative. 132. and other damages in an amount to be proven at trial. or in the alternative. 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. and the Software and Support Materials on that support system. As a direct and proximate result of Defendants’ actions. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. Oracle will seek its election of remedies at trial. its access-restricted internet-based support system. Oracle is entitled to an award of the value of the property taken. Oracle is entitled to restitution of the Defendants’ ill-gotten gains. Oracle has lost. in an amount to be determined at trial. Oracle is entitled to damages and repossession of the converted property. 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. Allowing Defendants to retain the benefits received as a result of their wrongful acts would unjustly benefit Defendants at Oracle’s expense. at the latest. At all times mentioned in this Complaint. In addition. Oracle had legal title to and actual possession of Customer Connection.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’ wrongful conduct was a substantial factor in causing this harm.
computer fraud concerning. as well as Defendants’ trespass on. including. 143. Defendants’ trespass interfered with.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. which took substantial time and money for Oracle to develop. for which Oracle’s remedy at law is not adequate to compensate it for the injuries inflicted and threatened. Defendants caused Oracle’s property to greatly diminish in value and deprived Oracle of the intended use of its computer systems. 139. 140. including Defendants’ interference with Oracle’s business relationships and other unfair business practices. Defendants will continue to commit such acts and other competitors will be encouraged to sweep Oracle’s website. the integrity and functionality of Oracle’s computer system and data. damage to the functionality of Oracle’s computer system and data. damage to Oracle’s rights to dominion and control over its property. and conversion of the Software and Support Materials. Eighth Claim for Relief Unjust Enrichment/Restitution (By Oracle Against All Defendants) 142. Defendants continue to unjustly retain these benefits at the 37 COMPLAINT . 141. and damaged. Defendants unjustly received benefits at the expense of Oracle through their wrongful conduct. and the Software and Support Materials housed for licensed access through Customer Connection. As a result. 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 damage to the confidential and copyrighted nature of the information on Oracle’s website. Defendants intentionally interfered with Oracle’s use or possession of both Customer Connection and Oracle’s related internal databases and systems. but not limited to. Defendants’ trespass and interference proximately caused damage to Oracle. in an amount to be determined at trial. Oracle is entitled to recover any and all damages it sustained as a result of such trespass. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. Defendants’ trespass therefore threatens to cause irreparable harm to Oracle.
Defendants willfully. loss of profits from sales to current and potential customers of Oracle support services and licenses for Oracle’s software 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 expense of Oracle. Oracle is accordingly entitled to full restitution of all amounts in which Defendants have been unjustly enriched at Oracle’s expense. intentionally. Defendants did the acts alleged pursuant to. 147. malicious. 146. ratifying. The wrongful conduct committed pursuant to the conspiracy was a substantial factor in causing this harm. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. and conversion of the Software and Support Materials. computer fraud concerning. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. As a direct and proximate result of the acts in furtherance of the conspiracy. and commission of. or adopting the acts of the others. damage. but not limited to. It would be unjust for Defendants to retain any value they obtained as a result of their wrongful conduct. 38 COMPLAINT . oppressive. including. and in furtherance of. including Defendants’ interference with Oracle’s business relationships and other unfair business practices. Oracle has suffered injury. encouraging. loss. and in conscious disregard of Oracle’s rights. 149. Defendants’ intentional agreement to commit. 148. these wrongful acts was willful. Ninth Claim for Relief Civil Conspiracy (By Oracle Against All Defendants) 145. and harm. 144. that agreement and/or furthered the conspiracy by cooperating. as well as Defendants’ trespass on. and knowingly agreed and conspired with each other to engage in the alleged wrongful conduct.
151. and conversion of the Software and Support Materials. computer fraud concerning. and in conscious disregard of Oracle’s rights. by providing substantial assistance and/or encouraging the others to act. 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.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. Defendants had full knowledge or should have reasonably known of the true nature of the wrongful conduct of each other Defendant. damage. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. 150. 152. and aided and abetted such wrongful conduct. including interference with Oracle’s business relationships and other unfair business practices. As fully described above. Defendants also aided and abetted the described wrongful conduct of the other Defendants by giving substantial assistance and/or encouragement that. 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. Defendants’ aiding and abetting of these wrongful acts was willful. oppressive. 153. separately considered. including. and harm. 154. but not limited to. As a direct and proximate result of the aiding and abetting of these acts. malicious. 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. was wrongful in and of itself. Oracle has suffered injury. 39 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 28 156. Prayer For Relief WHEREFORE. their officers. Oracle’s confidential. for the purpose of sabotaging Oracle’s ability to do business and compete in the market. and copyrighted Software and Support Materials. Defendants have obtained business through the use of unlawful conduct including. and that some or all of such money is rightfully due to Oracle. therefore. For a preliminary and permanent injunction restraining Defendants. but not limited to: (a) Intentionally and/or negligently interfering with Oracle’s prospective economic advantage with its existing and potential customers. including data. at Oracle’s expense. Defendants have received money as a result of their misconduct. Since at least September 2006. including without limitation. 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. without Oracle’s authorization. willfully. (d) Fraudulently accessing and intentionally trespassing on Oracle’s password-protected Customer Connection website. without authorization or consent. and those in active concert or participation with any of them from: (1) accessing any Oracle restricted-access or customer website. agents. (c) Willfully converting Oracle’s confidential. and. proprietary. and valuable 40 COMPLAINT . (b) Improperly. 158. distributing. proprietary. employees. and copyrighted Software and Support Materials. to a full accounting. and unlawfully taking commercial advantage of Oracle’s investment in its Software and Support Materials. or using any property obtained from Oracle’s website. Oracle respectfully prays for the following: A. in furtherance of their unlawful and deceptive scheme as described above. including without limitation the Customer Connection website. Oracle is entitled. internal documents. and attorneys. (2) selling. 157. servants.
and other computer code. including. fixes. including data. patches. C. proprietary. H. 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. For an Order directing Defendants to return Oracle’s property. (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. and. D. K. internal documents. and other computer code. fixes. and other computer code. J. setting forth in detail the manner and form in which Defendants have complied with the injunction. For an Order awarding Oracle its attorneys’ fees and costs. and copyrighted Software and Support Materials. downloading or copying property from Oracle’s website without Oracle’s authorization. intentional interference with Oracle’s prospective economic advantage. aiding and abetting and conspiracy. fixes. Court deems just and proper. For an Order awarding Oracle such other and further relief as the . but not limited to Oracle’s confidential. internal documents. F. G. and copyrighted Software and Support Materials. (3) removing. as set forth in this Complaint. that Defendants took from Oracle. B. Oracle’s confidential. proprietary. under oath. That the Court order Defendants to pay Oracle punitive damages in a sum to be determined at trial.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. I. and valuable updates. patches. patches. without limitation. 41 COMPLAINT For damages to be proven at trial. 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. For prejudgment interest. For an accounting. including data.
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