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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
the access originated from an internet protocol (IP) address in Bryan.. Oracle’s server logs have recorded access through this same IP address by computers labeled with SAP identifiers using SAP IP addresses. SAP users effectively swept much of the contents of Oracle’s system onto SAP’s servers. this user information did not match anything: it was fake. 7. Employing these techniques. email address. SAP TN is a company that purports to provide technical support services on certain versions of Oracle’s PeopleSoft and JDE software programs. For example.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. Texas. These “customer users” supplied user information (such as user name.” In other cases.000 unauthorized downloads of Software and Support Materials relating to hundreds of different software programs. some users logged in with the user names of “xx” “ss” “User” and “NULL. an SAP America branch office location and home of its wholly-owned subsidiary SAP TN. Texas IP address used to access and download Oracle’s Software and Support Materials is connected directly to SAP’s computer network. Oracle has found many examples of similar activity. Rather. For example. Indeed. and phone number) that did not match the customer at all. 9. The Bryan. to gain access to Oracle’s system under false pretexts. or 4 COMPLAINT . SAP employees used the log-in IDs of multiple customers. Across its entire library of Software and Support Materials in Customer Connection. SAP blended log-in information from multiple customers with fake information.” Others used phony email addresses like “test@testyomama. including the ones described above. combined with phony user log-in information. and downloaded Software and Support Materials even after the customer had dropped its support rights with Oracle. This systematic theft of Oracle’s Software and Support Materials did not originate from any actual customer location.com” and fake phone numbers such as “7777777777” and “123 456 7897. 8. like Metro Machine Corp. 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. All of these customers whose IDs SAP appropriated had one critical fact in common: they were. In many instances. Texas. Oracle to date has identified more than 10. In some cases.
Industry observers noted this fundamental shift in the competitive landscape. aimed at taking market share from No. developers. revenue comes from three basic activities: (a) license of the underlying software. a software company acquired by PeopleSoft. Oracle had previously announced that in January 2005 it would complete its acquisition of PeopleSoft. SAP AG spokesman Bill Wohl vowed that SAP AG would use SAP TN to “keep the pressure on 1 “JDE” refers to J. is developing a ‘super set’ of applications. Oracle said it has thousands of developers building the new application suite. (b) consulting relating to the implementation and operation of the software. “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. 1 ranked SAP. Edwards World Solutions. In January 2005. and support technicians. consulting. called Project Fusion. As a result of this illegal activity. through SAP America. Inc. an independent software support company founded by former PeopleSoft software engineers. Oracle officially became a player on SAP’s turf. “After the acquisition of PeopleSoft earlier this year. and support. 12.1 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. 10. * 11. new customers of SAP TN – SAP AG’s and SAP America’s software support subsidiary whose sole purpose is to compete with Oracle. increasing Oracle’s potency as a competitor to SAP AG for enterprise applications software. this theft appears to be an essential – and illegal – part of SAP’s competitive strategy against Oracle. 5 COMPLAINT . SAP AG acquired SAP TN.D. SAP AG’s hasty acquisition of SAP TN was widely perceived as a response to the new competitive threat from Oracle.” 13. and (c) support contracts to keep the software updated and upgraded. copyrighted Software and Support Materials. * * In the world of enterprise software applications. Not by coincidence. One industry analyst stated that. As explained below.” Another mused. SAP apparently has now warehoused an extensive library of Oracle’s proprietary. SAP’s own statements confirmed it. in 2003.
” In connection with the SAP TN acquisition. Publicly. · A systematic pattern of “sweeping” Oracle’s Customer Connection support website from SAP TN servers just days before. the 6 COMPLAINT SAP’s unlawful copying and theft includes. SAP advertised this strategy as its “Safe Passage” program.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. by way of example.” and a sign that “SAP has taken the gloves off. 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. It certainly did not match Oracle’s investment in development resources. committed to throw “a lot of additional resources” behind SAP TN (which consisted of only 37 employees in total). the . Bill McDermott. SAP America’s CEO.” 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. with indications that this number may go significantly higher if traced further back in time. SAP TN did not appear to have the development capability to meet the support commitments advertised in the “Safe Passage” brochures at any price. Nevertheless. much less the 50% discount promoted by SAP. explicitly designed to transition customers away from Oracle products and onto the SAP software platform.” Although SAP America President and CEO. As reported in industry publications. SAP TN’s services “form[ed] the basis of [SAP AG’s] Safe Passage initiative. industry observers deemed the “Safe Passage” program “measurably more aggressive. SAP appeared to focus more on growing the SAP TN sales force rather than investing in or expanding SAP TN’s tiny development team. Indeed. 14. SAP stole much of the Software and Support Materials directly from Oracle. following: · More than 10. or the day of. Bill McDermott. crowed “There’s nothing that I love more than to win. 15. or even come close to it. a program aimed at siphoning off valuable software maintenance revenue from Oracle and persuading Oracle customers to switch software products [to SAP].000 illicit downloads from Customer Connection between September 2006 and January 2007.
its many employees. or in some cases on behalf of former Oracle customers with no access rights to Oracle’s Software and Support Materials whatsoever. · Accessing and downloading Software and Support Materials across multiple product lines in multiple lines of business available on the Customer Connection support website. and theft of. and to attempt to convert these customers to SAP software applications. Oracle has no adequate remedy at law for the harm threatened and caused by these acts. and its customers.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16. the indiscriminate. · On multiple occasions.” SAP has been engaged in a systematic program of unfair. expiration of a new SAP TN customer’s support contract with Oracle. These illegal business practices threaten to cause irreparable harm to Oracle. · The improper access to. In short. unlawful. authorized customers or through normal access to Oracle’s Customer Connection system. Through its illegitimate and illegal business practices. SAP has taken Oracle’s Software and Support Materials and apparently used them to insinuate itself into Oracle’s customer base. 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. 7 COMPLAINT . in the purported name of customers that had never licensed those products and had no legal access to them. 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. clearly-marked internal proprietary Oracle support documents not available even to licensed. and deceptive business practices that continues to this day. to try to “keep the pressure on Oracle.
State of California. 19. State of California. Directly and through its subsidiaries. SAP TN is a Texas corporation with its principal place of business in Bryan. County of San Mateo. 18. 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. with its only place of business in Redwood City. The corporate relationship of the three named defendants is set forth in the chart below. County of San Mateo. Pennsylvania. Walldorf. Oracle USA is a Colorado corporation duly authorized to do business in the State of California. (“PeopleSoft”) and JDE. with its principal place of business in Redwood City. 20. Oracle USA is the successor to PeopleSoft USA. 21. Oracle USA develops and licenses database and applications software programs and provides related services. County of San Mateo. 23. Oracle Corporation develops and licenses database and applications software programs and provides related services around the world. Inc. State of California.. Oracle Corporation is a Delaware corporation with its principal place of business in Redwood City. SAP America is a wholly-owned subsidiary of SAP AG. 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. Oracle Corporation and Oracle USA are the licensees of the copyrights at issue in this action. THE PARTIES 17. Texas. Germany.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. 22. 8 COMPLAINT . OIC is a California corporation duly authorized to do business in the State of California. OIC is the owner of the copyrights at issue in this action. SAP TN is a wholly-owned subsidiary of SAP America.
parent. SAP America had both the right and authority to control the actions of SAP TN. or otherwise. By way of example only. inclusive. Subsidiary) Oracle is currently unaware of the true names and capacities of Does 1 through 50. partnership. California. alter ego.S. At all material times. and finances the sales and promotional activities of both SAP America and SAP TN throughout the United States and in California. SAP AG had both the right and the authority to control the actions of both corporations. promote. specifically in this judicial district. employee. and specifically this judicial district. Subsidiary) SAP TN (Wholly-owned U. SAP America and SAP TN advertise. corporation. Defendants all are doing business in and/or have directed their activities at California. and support customers in California and in this judicial district.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. and therefore sues these defendants by such fictitious names. license. joint venturer. including Does 1 through 50. representative. through its 100% ownership of both SAP America and SAP TN. unincorporated association. or co-conspirator of the others. SAP AG (German Parent Corporation) SAP America (Wholly-owned U. 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. through its 100% ownership of SAP TN. At all material times. sell. affiliate. was the agent. whether individual. subsidiary. SAP AG also holds an annual meeting of its Board of Directors in Palo Alto. 26. Oracle will amend this Complaint to allege their true names and capacities when ascertained. partner. Similarly. each of the Defendants. servant. SAP AG negotiates and enters into software license and support agreements directly within the United States and. at all material times. service.S. had full knowledge of and gave substantial 9 COMPLAINT . 25. 27.
et seq. § 1030(g) and 28 U. VI. This Court has supplemental subject matter jurisdiction over the pendent state law claims under 28 U. and the Court will have subjectmatter jurisdiction over those claims pursuant to 28 U.D. IV. JURISDICTION 28. FACTUAL ALLEGATIONS A. 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. §§ 1030 et seq.S. 3-2 (c) and (d).C. VENUE 30.C. § 1338. affiliation. when the relevant copyright registrations issue.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. Oracle’s Software and Support Materials 32.C. Power & Associates’ global certification for outstanding service and support based 10 COMPLAINT . 17 U. § 1367 because these claims are so related to Oracle’s claims under federal law that they form part of the same case or controversy and derive from a common nucleus of operative facts. and in doing the things alleged. employment. each was acting within the scope of such agency. 29.S. partnership. In addition.C. joint venture. Venue in this district is appropriate.S. and the Court has personal jurisdiction over each of the parties as alleged throughout this Complaint..S.S. V.R. 18 U. Oracle is the world’s largest enterprise software company. or conspiracy. Assignment is proper in this division under Civil L.S.. III. pursuant to 28 U. and the first to receive J. because a substantial part of the events giving rise to the dispute occurred in this district. and each is legally responsible for the acts and omissions of the others. § 1331. Oracle’s first cause of action arises under the Computer Fraud and Abuse Act.C. representation. §§ 101.S.C. Oracle will seek to amend this Complaint to add claims for copyright infringement under the Copyright Act. § 1391. service. a substantial part of the property that is the subject of the action is situated in this district. and this Court has subject-matter jurisdiction over this action pursuant to 18 U. INTRADISTRICT ASSIGNMENT 31.C.
software action requests. COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. the user must click on a button indicating that it accepts these terms. press releases. provided that (1) the below copyright notice appears in all copies and that both the copyright notice and this permission notice appear. In addition. The Legal Download Agreement further restricts use of documents downloaded from the website: Permission to use Documents (such as white papers. 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”).” 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. Use for any other purpose is expressly prohibited. WITHOUT LIMITING THE FOREGOING.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. users accessing specific materials. 42. 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. 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. 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. (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. 13 COMPLAINT . agree to additional legal restrictions. and (3) no modifications of any Documents are made. 41. such as a Software Application Request (“SAR”) through the SAR Search Web Application. datasheets and FAQs) from this server (“Server”) is granted.
or intellectual property rights to. On January 7. SAP AG CEO Henning Kagermann claimed that even with PeopleSoft. One way was to hit at Oracle’s customer base – and potentially increase its own – by acquiring and bankrolling a company that claimed the ability to compete with Oracle support and maintenance services on Oracle’s own software products.000 people joining by Webcast and phone. Oracle launched the newly-united company and unveiled. these same products. and geographic and product scope. testified on June 23. 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. Oracle Threatens To Unseat SAP 43. the combination revitalized Oracle overnight as a competitor in the business software applications business. 44. Richard Knowles. at its headquarters with more than 48.000-strong combined workforce of Oracle and PeopleSoft would provide unparalleled innovation and support to 23. events unfolded at a rapid pace: eleven days after its announcement. 2004 at the trial on the Department of Justice’s unsuccessful effort to block Oracle’s acquisition of PeopleSoft. Oracle would “not [be] a competitor which could really hurt us. SAP AG instead considered how to undermine Oracle. how the nearly 50. 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. but now Oracle offered a deeper. As SAP America’s Vice President of Operations. Not only do many SAP AG customers use Oracle’s superior database software programs. 45. 14 COMPLAINT . But SAP AG had no answer for the business proposition the new Oracle offered.” After the merger.000 business applications software customers throughout the world. 46. As SAP AG reeled. despite not owning any of the software code for. he even claimed to wish Oracle “good luck” in competing with SAP AG. 2005.1 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. Rather than improve its own products and offerings. 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.
In December 2004. SAP TN was a small software services company. SAP AG bought “another arrow in its quiver to hunt after Oracle’s customers. SAP AG proposed to buy SAP TN outright and make it a wholly-owned – and wholly-beholden – subsidiary. Acquiring SAP TN was not a mere investment by SAP AG. As one industry observer put it. To retain full control over every detail of its scheme to lure away customers from Oracle. headquartered in Bryan. and later. but – with the Oracle/PeopleSoft 15 COMPLAINT . SAP TN 47. because to the extent SAP AG successfully undermined Oracle by having its customers move from Oracle’s software to SAP AG’s software. 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.” 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. 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. Oracle. As described in a glossy spread in a leading industry publication. SAP AG has refused to disclose the terms of its SAP TN purchase.” D. in December 2004. and to use SAP TN to do 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 C. SAP Responds To Oracle Competition With Its “Safe Passage” Scheme 48. SAP TN president Andrew Nelson got “the magic phone call” from Jim Mackey. JDE. As one industry journalist explained. SAP TN would eventually lose its customer base. It claimed to compete with PeopleSoft. however. SAP AG’s “front man for SAP AG’s mergers and acquisitions strategy.” 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. just weeks before Oracle would close the PeopleSoft acquisition. Texas and founded by former PeopleSoft employees. often outdated. but a calculated competitive move.” 49. 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.
” The Senior Vice President and Chief Operating Officer of SAP Asia Pacific. SAP AG’s CEO.” 16 COMPLAINT . SAP AG would try to use SAP TN as a means of “speeding-up” the migration of PeopleSoft and JDE users to SAP platforms. SAP would offer cut-rate pricing combined with the promise of essentially unlimited future support to former PeopleSoft and JDE support customers. SAP America CEO Bill McDermott claimed “The SAP Safe Passage offering gives companies an affordable way to protect their current investments. SAP America’s CEO. SAP TN’s new parent companies directed it to begin to implement a two-phase plan to increase SAP’s enterprise application market share. identified SAP TN as instrumental to the parent company’s “Safe Passage” program. SAP TN agreed to the deal and cast its lot with SAP AG.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. publicly vowed to bankroll this effort to undermine Oracle by putting “a lot of additional resources into TomorrowNow. 2005. which in turn was part of SAP’s “ongoing strategy to compete with Oracle. As SAP AG Managing Director Alan Sedghi admitted. ease integration with SAP NetWeaver(TM) and begin the process of innovating their businesses today. The CEOs stated the proposition more bluntly.” A month later. publicly indicating that SAP TN was authorized and intended to implement SAP AG’s goals. Andrew Nelson.” And SAP TN certainly knew its role was to achieve SAP AG’s ends: as SAP TN’s CEO. in connection with converting Oracle customers to SAP support (via SAP TN). Colin Sampson.” 51. at the SAP AG annual meeting. 52. On January 19. Bill McDermott. After the acquisition. Henning Kagermann. 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. admitted that the SAP TN acquisition was “an integral part” of SAP’s Safe Passage program. to lure the support business over. 50. Second. SAP AG’s top executives unveiled SAP AG’s acquisition of SAP TN as the centerpiece of its new “Safe Passage” scheme. First. “We're owned by SAP. SAP would aggressively campaign to migrate those customers to an SAP enterprise software platform. stated. In April 2005. We want them to be successful.
SAP AG did not simply sit back and leave the recruiting of potential Safe Passage customers to SAP TN’s sales force. albeit unfounded. To implement Phase Two of its plan (luring Oracle customers to the SAP enterprise software platform). JD Edwards. Instead. SAP AG’s “second wave” included “an intensive customer recruitment campaign. SAP sales representatives unleashed a torrent of marketing materials designed to exacerbate and leverage perceived. To give teeth to these commingled sales efforts.” 54. consider another option: SAP. SAP AG offered maintenance support through SAP TN. quality support from Oracle. PeopleSoft and JDE customer uncertainty about the prospects for long-term. As reflected on SAP AG’s website: “SAP offers Safe Passage for PeopleSoft.” (emphasis supplied) SAP America’s website promises that “SAP and TomorrowNow can cut your maintenance costs by as much as 50% through 2015.” 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. it took a hands-on approach.000 direct mail solicitations to Oracle customers. 55. It deployed its salespeople to contact potential customers and push them to switch to SAP TN’s services. SAP implemented Phase One immediately. These lower cost alternatives advertised by SAP AG were to come directly through SAP TN. the SAP AG sales personnel would pressure the customers to drop Oracle products outright in favor of SAP AG’s suite. 17 COMPLAINT . Beginning in January 2005.1 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. An April 2005 SAP AG press release apparently aimed to increase perceived doubt among Oracle customers by announcing a “second wave” of “Safe Passage. offering significantly lower cost maintenance alternatives to Oracle customers running PSFT/JDE solutions” through 70.” and elsewhere says that “Safe Passage maintenance and support are delivered worldwide through TomorrowNow.” To exploit the fear it intended to create. technology and maintenance services. If customers declined to convert to SAP TN. and Siebel customers – If Oracle’s options have you worried. SAP provides solutions. officially “bundled” with SAP AG enterprise software as a centerpiece of the Safe Passage program.
” 57.com after Oracle’s announcement of its impending Siebel acquisition. SAP AG continued to tout the success of Safe Passage. and which it claimed “offers companies SAP solutions. companies and corporate cultures. By March 2006. SAP AG’s CEO. SAP AG CEO Henning Kagermann conceded that SAP had lost as much as 2% market share to Oracle. Bill McDermott. In a July 2006 earnings call.’s own products [the Siebel products] for a far cheaper price. However. round the clock Siebel code support within a few weeks of Oracle’s acquisition announcement remained a mystery. curiously. and more aggressive. SAP AG boasted in a press release that more than 200 customers had signed up for Safe Passage.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 56. SAP AG’s President of Customer Solutions and Operations.” including because SAP AG “extended the program in order to offer it as well to Siebel 18 COMPLAINT . SAP executives touted the Safe Passage program’s limited success in its first year. SAP announced it would extend its Safe Passage program to Siebel customers. that it will offer technical support for more of rival software maker Oracle Corp. promised SAP AG would use SAP TN and the Safe Passage program to “fight for” more customers.” but its services were expanded to support more Oracle product lines and a wider range of customers. As reported on Forbes.” SAP’s “cheaper price” (referred to elsewhere as “cut rate” support) continued at “50 cents on the dollar for maintenance fees. 58. 2005 announcement that it would acquire Siebel Systems. At the same time. 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. In October 2005. Henning Kagermann. . “SAP AG plans to announce . SAP grew more desperate.” How SAP could offer instantaneous. the program it implemented partly through SAP TN. boasted that Safe Passage “continues to do really well. maintenance services. technology. SAP America President and CEO. . as Oracle continued to take market share and expand its product offerings. Léo Apotheker. By July 2006. investment protection and a clear road map to the next generation of business software. 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. including through its September 12.
Although SAP put a brave face on its ability to compete with the increasingly potent Oracle applications offerings. The economics. 24x7x365” on software programs for which it had no intellectual property rights. SAP continued to offer this comprehensive support to hundreds of customers at the “cut rate” of 50 cents on the dollar. and purported to add full support for an entirely different product line – Siebel – with a wave of its hand. and updates that comprise the advanced support services required by Oracle’s licensed customers. could actually develop and offer the hundreds of regulatory updates. F.” “full upgrade script support. as it did on its website and its other materials. SAP unlawfully accessed and copied Oracle’s Software and Support Materials. “customized ongoing tax and regulatory updates. by comparison. patches. It was not clear how SAP TN could offer.” By extending the Safe Passage program to Siebel customers. simply did not add up. and the logic. To stave off the mounting competitive threat from Oracle. A Deal Too Good To Be True 59. Apotheker claimed that SAP now had “a global network of [SAP TN] capabilities” – enough to “gain significant traction. 62. Oracle. maintains a development force of more than 15. bug fixes. even after having expanded its ranks to 150 employees. optimally functioning Oracle software. some industry analysts wondered whether a small company like SAP TN.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 SAP Solution: Stolen Passage 1. without infringing on Oracle’s intellectual property. and other labor-intensive support items that a customer would need to maintain useful. Oracle Finds A Suspicious Pattern To analyze and improve on its industry leading support services. most remarkably. and in conjunction with opening new SAP TN offices around the world.” and. To compound the puzzle. patches. “30-minute response time.” E.” “fixes for serious issues. Oracle has now solved this puzzle.000 software and support engineers to create and help implement the code fixes. 60. 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 . 61.
including dozens. In late 2006. the support system responds by offering the customer further options. these clicks could not reflect real responses from any human customers actually reading the solutions they had accessed. 64. authorized use of Customer Connection. Oracle discovered a pattern. Frequently. in the month before a customer’s Oracle support expired. These clicks numbered in the thousands for several customers. Oracle regularly compiles this data to assess whether its system helped customers resolve their support issues. over and over again. Oracle also discovered that the downloaded Software and Support Materials included internal documents not available even to licensed customers and not available through normal. 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. employing the customer’s log-in credentials. 63. Given the extreme speed at which the activity occurred. apparently.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. would access Oracle’s system and download large quantities of Software and Support Materials. And. hundreds. continue search” option. 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. Oracle noticed huge. continue search” option. If the customer selects the “No. 2. Indeed. 65. In the course of this investigation. Oracle soon discovered that many of these “customers” had taken massive quantities of Software and Support Materials beyond their license rights. a user purporting to be that customer. and Oracle discovered that each response – each answer by users pretending to be the customer – occurred in a matter of seconds or less. 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 . unexplained spikes in the number of customers on the online support website who had clicked the “No. Some of these apparent customer users even downloaded materials after their contractual support rights had expired. Instead. to take a copy of them all.
including: (1) Andrew Nelson. (5) Nigel Pullan.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. who is reflected as the person performing many of the downloads at issue. distribute.P. or lease the Software or Documentation. sublicense. relicense. Edwards Support. In addition. · That the Materials on the support website are confidential information subject to existing confidentiality agreements. or Oracle. · Not to directly or indirectly. V. and a significant number of its employees. V. former PeopleSoft employees who work for SAP. or any portion thereof.D. International Sales. disclose. (4) Mel Gadd. V. 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. or third party training. Quality. appear to have applied their familiarity with the Customer Connection website to directly participate in and perfect the illegal 22 COMPLAINT . use.P. six list prior employment experience with PeopleSoft. · That the customer username and password are for the customer’s sole use in accessing this support server. North American Sales. JDE.P. (2) Bob Geib. · Not to access the customer support system if it is not the customer’s authorized and designated Oracle technical support contact. Global PeopleSoft Support. SAP TN has intimate familiarity with these important restrictions and conditions relating to Oracle’s Software and Support Materials. · 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. for third party use. formerly worked at PeopleSoft and JDE. President and CEO. (3) Laura Sweetman. V. such as Wade Walden. Global J. rent.P.P. SAP TN’s management. Of SAP TN’s tenmember management team. V.
S. Fuelserv Limited. and Yazaki North America. Herbert Waldman. and covers too many individual violations.. Such acts constitute copyright infringement under 17 U. 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. create derivative works.. and distribute these works. SPX Corporation. Metro Machine Corp. National Manufacturing. Specific Examples Of SAP TN’s Unlawful Customer Downloads SAP TN’s improper access to. B. Oracle has uncovered unlicensed downloads linked to SAP TN on behalf of numerous customers.C. 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. Helzberg Diamonds. Caterpillar Elphinstone. to comprehensively detail here. AbitibiConsolidated. SAP TN reviewed and agreed to the terms and conditions on Oracle’s support website before proceeding. VSM Group AB. and therefore committed its theft knowingly and intentionally. Ronis.. NGC Management Limited. offer for sale. SAP TN’s acts violated Oracle’s exclusive rights to use.. and in conscious disregard of Oracle’s protected intellectual property and the integrity of its computer systems. reproduce. and taking from. 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..S. 4.1 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. Inc. Border Foods. Stearns & Co. Bear. Texas Association of School Boards. With literally thousands of software programs available for licensing. S. Laird Plastics. Mortice Kern Systems. Interbrew UK. Grupo Costamex. and impose strict confidentiality requirements. including without limitation.V. Stora Enso.A. 17 U. Berri Limited. 74. § 501 and also willful and intentional copyright infringement under 17 U..S.C. Smithfield Foods. 75. display. Inc.C. Merck & Co. OCE Technologies. Distribution & Auto Service. § 506. Honeywell International. By way of example 24 COMPLAINT . Abbott Laboratories.. Oracle’s Customer Connection website is too pervasive. Accordingly. §§ 101 et seq. publish.
But. This unlawful downloading even stretched across product families. 25 COMPLAINT . a user employing Honeywell’s log-in ID downloaded over 7.000 of the Software and Support Materials taken in this period were solutions that Honeywell was not licensed to take at all. 77. Inc. 76. 2007. Users logging into Oracle’s support system with Merck’s credentials continued to download Software and Support Materials into March 2007. during which “Honeywell” was downloading almost 1800 solutions per day. 2007 and nearly 400 more the next day. Honeywell. the unauthorized downloads did not stop there. “Honeywell” downloaded over 450 distinct unlicensed solutions on January 16. (“Merck”). 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. Many of these “Merck” downloads came directly from an IP address in Bryan. it averaged just over 20 downloads of Software and Support Materials per month. Honeywell used and licensed PeopleSoft software applications. Honeywell International (“Honeywell”) is listed on SAP TN’s website as a client. users purporting to be “Merck” logged into the Oracle support system and downloaded over 9. In the approximately three and a half year period before Honeywell switched to SAP TN. Wade Walden – a former PeopleSoft employee now employed by SAP. Most of these excessive downloads came during the course of four days. one of the largest pharmaceutical companies in the world. licenses and receives support for many Oracle software products. Over 2. Merck’s support rights for its JDE software products expired on January 1. but Oracle discovered users downloading JDE products with Honeywell’s credentials.000 distinct Software and Support Materials for JDE software.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.000 Software and Support Materials in less than two weeks in January 2007. In one specific library containing solutions for Enterprise One software. Oracle sets forth below illustrative instances of SAP TN’s illegal conduct regarding a few of its customers. Merck. Oracle subsequently connected many of the illegal downloads to an SAP TN IP address and to SAP TN’s employee. More than 5. Merck & Company. Then.000 of these downloads related to JDE software products for which Merck had no license. after switching to SAP TN.
” and phone numbers such as “4444444444” and “999 999 9999. These downloads included over 3. “TNL-02. OCE-Technologies B.” 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 Real Estate Management – none of which make sense coming from a European customer in support of its European business.000 distinct items for which OCE had no license. Homebuilder Management.” Similar to the other customer examples. SAP TN users employed fake identification information to download the Software and Support Materials.” Neither Merck nor SAP TN had any license. OCE. Canadian Payroll.” “9999999999.V. and neither OCE nor SAP TN have any license. including specifically to a computer with SAP TN’s initials in the title. “TN-DL03.000 distinct Software and Support Materials. (“OCE”) is located in the Netherlands and appears as a customer on SAP TN’s website. in some 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 Texas that belongs to SAP TN. using names such as “xx” “ss” and “NULL. authorization. users employing OCE’s credentials downloaded a large number of Oracle products relating to US Payroll. many of these “OCE” users entered phony identification information. authorization or other right to access and download the 5. Texas. 78. 26 COMPLAINT .” In many cases. false user names) and downloaded over 12. or other right to access and download these Software and Support Materials. and could serve no legitimate or lawful business purpose. 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. In the months leading up to the expiration of OCE’s support rights for its Oracle products. since OCE does not run many of the software programs to which these downloads relate.000-plus unlicensed Software and Support Materials from Oracle. such as the name “user” and phone numbers such as “123 456 7897.” and even “xxx xxx xxxx. From December of 2006 to January of 2007. and some were traced to a computer with SAP TN’s initials in the title. Like the other companies. There is little chance that SAP TN intended OCE as the beneficiary of these massive sweeps.
Nearly 400 of those downloads related to software programs that Metro Machine had not licensed from Oracle. between October and December 2006. users logging into Oracle’s support system with Metro Machine’s credentials continued to download Software and Support Materials into March 2007. originated from the same IP address belonging to SAP TN. SAP Adds The Ill-Gotten Gains To Its Coffers 81. 2006 were Software and Support Materials related to unlicensed Payroll software. Oracle has traced these illegal and unauthorized downloads to the same SAP TN IP address employed for the Honeywell downloads described above. For the nine month period prior to October 2006. Not coincidentally.” Many of these SPX downloads. In addition. SPX Corporation (“SPX”) dropped all Oracle support on December 10.” 80. SAP AG and SAP America directed this 27 COMPLAINT . illegally downloaded thousands of fixes and updates from Oracle’s restricted customer support website. SPX. and some were traced to a computer with SAP TN’s initials in the title. like the others. users purporting to represent SPX accessed and downloaded over 8. “tn-wts01. at SAP AG’s and SAP America’s direction.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. SAP TN. G. In some cases. SAP TN now claims to have delivered thousands of fixes and more than 800 tax and regulatory updates to Oracle’s former customers.000 distinct Oracle Software and Support Materials (far more than SPX could legitimately access or use). these users logged in using SPX credentials. (“Metro Machine”) dropped all Oracle support effective on January 1. users purporting to represent Metro Machine logged onto Oracle’s support servers and downloaded nearly 6. SPX averaged approximately eleven downloads per month from Oracle’s support system. as reflected on SAP TN’s website. Over 300 distinct downloads just on November 30. 2007 and switched to SAP TN. These SPX downloads included over 1. Then. 2006 and became an SAP TN customer. listed on its website. Metro Machine. In the month before Metro Machine dropped its support rights with Oracle.000 distinct Software and Support Materials. but used fake identification information like the name “NULL” and phone numbers like “7777777777” and “999 999 9999.700 distinct Software and Support Materials for which SPX had no license. Metro Machine Corp.
S. and prospective customers and the associated license and support revenue to artificially inflate its market share. Using Oracle’s own protected property to unfairly compete against and undercut Oracle.C. and never disavowed it. and by means of such conduct furthered the intended fraud and obtained one or more things of value. First Claim for Relief Violation of Federal Computer Fraud and Abuse Act (18 U. by intentionally accessing a computer used for interstate commerce or communication.S. § 1030(a)(4) by knowingly. including but not limited to Oracle’s Software and Support Materials. 85. interference with Oracle’s business relationships. in addition to the irreparable harm caused by Defendants’ unfair competition.C. 83.1 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. Defendants have violated the Computer Fraud and Abuse Act. 18 U. trespass on Oracle’s support website. Defendants have violated the Computer Fraud and Abuse Act. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. ratified it. code. current. §§ 1030(a)(2)(C) & (a)(4) & a(5)) (By Oracle Against All Defendants) 82. and with intent to defraud Oracle. § 1030(a)(2)(C). 28 COMPLAINT . Defendants have violated the Computer Fraud and Abuse Act. and by obtaining information from such a protected computer. SAP has thereby caused significant damage to Oracle through its SAP TN subsidiary. 18 U.C. 18 U. and related computer fraud. without authorization or by exceeding authorized access to such a computer. 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.S. accessing a protected computer. without authorization or by exceeding authorized access to such a computer. information.S.C. SAP has illegally converted Oracle’s former.
S. Penal Code § 502 (By Oracle Against All Defendants) 90. 92. and/or computer network. 91. and making use of programs. Unless restrained and enjoined. Second Claim for Relief Computer Data Access and Fraud Act . causing damage to Oracle. § 1030(e)(2).S. 89. 87. fraudulently. and/or computer network. Defendants will continue to commit such acts. without limitation. 29 COMPLAINT . 18 U.S.C. and without permission accessing and using Oracle’s computer services. Defendants have violated the Computer Fraud and Abuse Act. copying. Defendants have violated California Penal Code § 502(c)(2) by knowingly and fraudulently.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. §§ 1030(a)(5)(A)(ii) & (iii) by intentionally accessing a protected computer without authorization. fraudulently. harm to Oracle’s data. in any event. and without permission providing. § 1030(g). recklessly or without due regard for their actions. accessing. The computer system or systems that Defendants accessed as described above constitute a “protected computer” within the meaning of 18 U. entitling Oracle to remedies including injunctive relief as provided by 18 U. taking. but. and computer systems and other losses and damage in an amount to be proved at trial. and without permission. programs. Oracle’s remedy at law is not adequate to compensate it for these inflicted and threatened injuries. 93. 88. computer system. computer system. or assisting in providing. Defendants have violated California Penal Code § 502(c)(3) by knowingly. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. a means of accessing Oracle’s computers. including.C.Cal. data. Defendants’ unlawful access to and theft from Oracle’s computers also have caused Oracle irreparable injury. in an amount well over $5000 aggregated over a one-year period. Defendants have violated California Penal Code § 502(c)(6) by knowingly.C. Oracle has suffered damage and loss by reason of these violations. and files from Oracle’s computers.
and/or computer network.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. 97. there is a 30 COMPLAINT . Defendants have caused damage to Oracle in an amount to be proven at trial. Oracle is therefore entitled to punitive damages. Oracle has an expectancy in continuing and advantageous economic relationships with current and prospective purchasers and licensees of Oracle’s support services and software. Defendants have violated California Penal Code § 502(c)(7) by knowingly. computer system. and due to the continuing threat of such injury. 100. Oracle owns the data that comprises the Software and Support Materials obtained by Defendants as alleged above. 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. 95. and without permission accessing. or causing to be accessed. fraudulently. These relationships contained the probability of future economic benefit in the form of profitable support service contracts and software licenses. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. has no adequate remedy at law. entitling Oracle to injunctive relief. 96. 98. Oracle is also entitled to recover its reasonable attorneys’ fees pursuant to California Penal Code § 502(e). Oracle has also suffered irreparable injury from these acts. Oracle’s computers. As a direct and proximate result of Defendants’ unlawful conduct within the meaning of California Penal Code § 502. Had Defendants refrained from engaging in the unlawful and wrongful conduct described in this complaint. 101. Third Claim for Relief Intentional Interference With Prospective Economic Advantage (By Oracle Against All Defendants) 99.
including. As a result of Defendants’ acts. fraud and related activity in connection with an access device.S. but not limited to. Defendants’ conduct was wrongful by a measure beyond the fact of the interference itself. violation of the Federal Computer Fraud and Abuse Act. loss of profits from sales or licenses to 31 COMPLAINT .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 substantial probability that Oracle support customers would have initiated. renewed.S. including. §§ 270111. Defendants gained unauthorized access to Oracle’s password-protected Customer Connection support website through false or improper credentials. Penal Code § 502.S.S. but not limited to. 104. 18 U. 103. and without the cost of competing fairly by independently developing the same support materials. As a direct and proximate result of Defendants’ actions. and used that property to obtain and retain Oracle’s current and prospective clients.C. This conduct. or expanded support contracts and software licenses with Oracle rather than Defendants. 102. and conspiracy. 106. On information and belief. Defendants’ conduct also constitutes trespass to chattels.C..C. Cal. Penal Code § 496. as alleged above. receipt of stolen property. 18 U. Oracle has suffered economic harm. These acts were undertaken by Defendants to obtain for themselves the software support contract revenue at Oracle’s expense. conversion. 18 U. 105. wire fraud. § 1343.C. in some cases. violation of RICO. 18 U. Cal. 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. § 1030 et seq. and violation of the Stored Communications Act. for their enterprise software. § 1029. and ultimately to migrate such customers away from Oracle’s software programs and onto their own. constitutes violations of numerous state and federal statutes and codes. § 1962. copied Oracle’s intellectual and contractual property. 18 U.C. unauthorized access to computers. the above-described relationships have been actually disrupted. unjust enrichment. causing certain current and prospective support clients to contract with Defendants instead of Oracle for their software support and maintenance and.
These relationships contain the probability of future economic benefit in the form of profitable support service contracts and software licenses. Instead. Oracle has an expectancy in continuing and advantageous economic relationships with current and prospective purchasers and licensees of Oracle’s support services and software. renewed. described above. and in conscious disregard of Oracle’s rights. Had Defendants refrained from engaging in the unlawful and wrongful conduct described in this complaint.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 current and potential customers of Oracle support services and software programs. there is a substantial probability that Oracle support customers would have initiated. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. malicious. or expanded support contracts and software licenses with Oracle rather than Defendants. was willful. 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. 112. 110. Unless Defendants are restrained by appropriate injunctive relief. Fourth Claim for Relief Negligent Interference With Prospective Economic Advantage (By Oracle Against All Defendants) 109. 108. 111. 107. Defendants knew or should have known about the economic relationship. Defendants’ interference with Oracle’s prospective economic advantage with its current and future customers. oppressive. Defendants failed to act with reasonable care. Defendants’ wrongful conduct 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. their actions are likely to recur and will cause Oracle irreparable injury for which there is no adequate remedy at law. as described above. they used Oracle’s Software and Support Materials to obtain and retain for themselves software 32 COMPLAINT .
Defendants’ conduct was wrongful by a measure beyond the fact of the interference itself. maintenance. 117. § 1030 et seq. their actions are likely to recur and will cause Oracle irreparable injury for which there is no adequate remedy at law. 116. 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 support contract revenue at Oracle’s expense and without the cost of competing fairly by independently developing the same support materials. including. 18 U. Defendants gained unauthorized access to Oracle’s password-protected Customer Connection support website through false or improper credentials. § 1962. causing certain current and prospective support clients to contract with Defendants instead of Oracle for their software support and maintenance and. Cal.C. but not limited to. including. 18 U. Oracle has suffered economic harm. but not limited to.S. for their enterprise software. As a result of Defendants’ acts. As a direct and proximate result of Defendants’ actions. and software products. Defendants’ conduct also constitutes trespass to chattels. and used that property to obtain and retain Oracle’s current and prospective clients. and conspiracy. violation of the Federal Computer Fraud and Abuse Act. copied Oracle’s intellectual and contractual property. as alleged above..C. 114. Unless Defendants are restrained by appropriate injunctive relief. §§ 270111. 33 COMPLAINT . in some cases.S. loss of profits from sales to current and potential customers of Oracle support. unauthorized access to computers. 18 U. wire fraud. Penal Code § 502. Penal Code § 496. receipt of stolen property.S. § 1343. Cal. conversion. 18 U. violation of RICO. unjust enrichment. the above-described relationships have been actually disrupted. § 1029. 18 U.C.S. fraud and related activity in connection with an access device. Defendants’ wrongful conduct was a substantial factor in causing this harm. and violation of the Stored Communications Act.C. 115. 113. This conduct.C.S.
121. violation of RICO. and unfair competition as defined by California Bus. §§ 1030 et seq. proprietary. fraud and related activity in connection with an access device.C. 18 U. 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. Code §§ 17200. 18 U. The acts and conduct of Defendants constitute fraudulent.C.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. Penal Code § 496. including. Cal. 18 U. et seq. § 1029. 122. § 1343. unjust enrichment. Defendants’ conduct constitutes violations of numerous state and federal statutes and codes. trespass. 120. 18 U. 123. In light of Defendants’ conduct. unauthorized access to computers. unlawful. conversion. conversion.Cal. 18 U. negligent interference with prospective economic advantage. Bus. but not limited to. §§ 2701-11. Defendants’ conduct also constitutes trespass to chattels. receipt of stolen property.S. & Prof. Defendants have improperly and unlawfully taken commercial advantage of Oracle’s investment in its confidential. & Prof. violation of the Computer Fraud and Abuse Act. § 1962. 119. intentional interference with prospective economic advantage. 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.C.S.S.S. all in an effort to gain unfair competitive advantage over Oracle. interference with business relationships. Cal. and violation of the Stored Communications Act. 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. 34 COMPLAINT . Defendants have engaged in unlawful business acts or practices by committing acts including computer fraud. and copyrighted Software and Support Materials.C.C. and other illegal acts and practices as alleged above.S. Penal Code § 502.. wire fraud. and conspiracy. Fifth Claim for Relief Unfair Competition .
profits. or distribution of such property. including. downloading. and benefits they may have obtained in violation of California Business & Professions Code § 17200 et seq. 125. Defendants should further be ordered to return all materials taken from Oracle. to Defendants’ copying. 130. including.. but not limited to. Sixth Claim for Relief Conversion (By Oracle Against All Defendants) 127. Oracle at no time consented. custody. Oracle has also suffered irreparable injury and. expressly or impliedly. This property is the sole and exclusive property of Oracle. in their possession. Defendants intentionally and willfully entered Oracle’s password-protected Customer Connection support website without permission and took possession of Oracle’s property. Defendants’ unfair business practices have unjustly minimized Oracle’s competitive advantage and have caused and are causing Oracle to suffer damages. removal. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. returning the value of the stolen property itself and any revenue earned from it. As a result of such unfair competition. which is valuable to Oracle and vital to its continued business operations. compensation. will continue to suffer irreparable injury. unfair. or control. earnings. 129. 35 COMPLAINT . Oracle’s confidential. all of which Oracle stored on its computer system. unless Defendants are enjoined from such unfair competition. and deceptive business practices. whereby Oracle has no adequate remedy at law. Defendants should be compelled to disgorge and/or restore any and all revenues. proprietary. retention. and all copies of such. 126. and copyrighted Software and Support Materials. but not limited to. 128.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 124. and should be enjoined from further unlawful. Instead of paying Oracle for the use of its property. Oracle has an exclusive right to possession and distribution of such property.
and the Software and Support Materials on that support system. 137. 133. Oracle had legal title to and actual possession of Customer Connection. 134. Allowing Defendants to retain the benefits received as a result of their wrongful acts would unjustly benefit Defendants at Oracle’s expense. and other damages in an amount to be proven at trial. with interest. or in the alternative. Oracle has lost. 135. its access-restricted internet-based support system. As a direct and proximate result of Defendants’ actions. 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. in an amount to be determined at trial. 36 COMPLAINT . Oracle is entitled to an award of the value of the property taken. Oracle will seek its election of remedies at trial. 132. profits from potential purchasers of Oracle support services and licensees of Oracle software products. Since that time. at the latest. Oracle is entitled to restitution of the Defendants’ ill-gotten gains.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. as described above. and will continue to lose. 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. In addition. Oracle is entitled to damages and repossession of the converted property. or in the alternative. Seventh Claim for Relief Trespass To Chattels (By Oracle Against All Defendants) 136. In addition. At all times mentioned in this Complaint. Defendants have been in knowing and unauthorized possession and control of such property since at least between September 2006 and the present. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here.
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. Defendants continue to unjustly retain these benefits at the 37 COMPLAINT . damage to the functionality of Oracle’s computer system and data. Defendants’ trespass interfered with. 141. 140. Defendants intentionally interfered with Oracle’s use or possession of both Customer Connection and Oracle’s related internal databases and systems. for which Oracle’s remedy at law is not adequate to compensate it for the injuries inflicted and threatened. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. As a result. computer fraud concerning. damage to Oracle’s rights to dominion and control over its property. as well as Defendants’ trespass on. including Defendants’ interference with Oracle’s business relationships and other unfair business practices. Oracle is entitled to recover any and all damages it sustained as a result of such trespass. Defendants will continue to commit such acts and other competitors will be encouraged to sweep Oracle’s website. but not limited to. in an amount to be determined at trial. and the Software and Support Materials housed for licensed access through Customer Connection. Defendants’ trespass therefore threatens to cause irreparable harm to Oracle. potentially to the point of denying effective access to Oracle’s customers and preventing Oracle from using its systems and data for their intended purpose. Defendants’ trespass and interference proximately caused damage to Oracle. Eighth Claim for Relief Unjust Enrichment/Restitution (By Oracle Against All Defendants) 142. and damage to the confidential and copyrighted nature of the information on Oracle’s website. Defendants unjustly received benefits at the expense of Oracle through their wrongful conduct. 139. including. and conversion of the Software and Support Materials. which took substantial time and money for Oracle to develop. the integrity and functionality of Oracle’s computer system and data. Defendants caused Oracle’s property to greatly diminish in value and deprived Oracle of the intended use of its computer systems. and damaged. 143.
oppressive. The wrongful conduct committed pursuant to the conspiracy was a substantial factor in causing this harm. malicious. Ninth Claim for Relief Civil Conspiracy (By Oracle Against All Defendants) 145. as well as Defendants’ trespass on. 38 COMPLAINT . 146. ratifying. including. 148. Defendants’ intentional agreement to commit. As a direct and proximate result of the acts in furtherance of the conspiracy. Oracle has suffered injury. It would be unjust for Defendants to retain any value they obtained as a result of their wrongful conduct. and in furtherance of. and harm. and in conscious disregard of Oracle’s rights. including Defendants’ interference with Oracle’s business relationships and other unfair business practices. loss. computer fraud concerning. but not limited to. damage.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. 149. loss of profits from sales to current and potential customers of Oracle support services and licenses for Oracle’s software programs. Defendants willfully. intentionally. or adopting the acts of the others. that agreement and/or furthered the conspiracy by cooperating. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. 144. 147. and conversion of the Software and Support Materials. Oracle is accordingly entitled to full restitution of all amounts in which Defendants have been unjustly enriched at Oracle’s expense. encouraging. and commission of. Defendants did the acts alleged pursuant to. and knowingly agreed and conspired with each other to engage in the alleged wrongful conduct. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. these wrongful acts was willful.
including. 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. and conversion of the Software and Support Materials. The wrongful conduct aided and abetted by the Defendants was a substantial factor in causing this harm. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. was wrongful in and of itself. 39 COMPLAINT . loss of profits from sales to current and potential customers of Oracle support services and licenses to Oracle software programs. but not limited to. and aided and abetted such wrongful conduct. 154. and harm. loss. damage. oppressive. 152. Defendants’ aiding and abetting of these wrongful acts was willful. 150. including interference with Oracle’s business relationships and other unfair business practices. Defendants also aided and abetted the described wrongful conduct of the other Defendants by giving substantial assistance and/or encouragement that. 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. 153. as well as Defendants’ trespass on. Oracle has suffered injury. computer fraud concerning.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. 151. malicious. As a direct and proximate result of the aiding and abetting of these acts. and in conscious disregard of Oracle’s rights. As fully described above. separately considered.
and copyrighted Software and Support Materials. without authorization or consent. employees. for the purpose of sabotaging Oracle’s ability to do business and compete in the market. (c) Willfully converting Oracle’s confidential.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. or using any property obtained from Oracle’s website. For a preliminary and permanent injunction restraining Defendants. Prayer For Relief WHEREFORE. without Oracle’s authorization. and unlawfully taking commercial advantage of Oracle’s investment in its Software and Support Materials. (b) Improperly. Oracle is entitled. proprietary. internal documents. proprietary. agents. Oracle’s confidential. to a full accounting. Defendants have obtained business through the use of unlawful conduct including. Defendants have received money as a result of their misconduct. in furtherance of their unlawful and deceptive scheme as described above. servants. willfully. Oracle respectfully prays for the following: A. and valuable 40 COMPLAINT . 157. at Oracle’s expense. and copyrighted Software and Support Materials. and attorneys. (2) selling. but not limited to: (a) Intentionally and/or negligently interfering with Oracle’s prospective economic advantage with its existing and potential customers. (d) Fraudulently accessing and intentionally trespassing on Oracle’s password-protected Customer Connection website. 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. including data. 158. and. distributing. Since at least September 2006. and that some or all of such money is rightfully due to Oracle. including without limitation. their officers. therefore. 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 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. For prejudgment interest. and valuable updates. under oath. including data. (3) removing. intentional interference with Oracle’s prospective economic advantage. I. downloading or copying property from Oracle’s website without Oracle’s authorization. internal documents. G. J. Court deems just and proper. internal documents. and other computer code. patches. and other computer code. Oracle’s confidential. including. that Defendants took from Oracle. and other computer code. For an Order awarding Oracle such other and further relief as the . F. fixes. and copyrighted Software and Support Materials. H. and copyrighted Software and Support Materials. D. including. patches. (4) otherwise engaging in acts of unfair competition and interference with Oracle’s business relationships. fixes. and valuable updates. patches. For restitution and disgorgement of all ill-gotten gains unjustly obtained and retained by Defendants through the acts complained of here. and. 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. aiding and abetting and conspiracy. B. K. as set forth in this Complaint. setting forth in detail the manner and form in which Defendants have complied with the injunction. C. proprietary. including data. on the basis of their willful and deliberate unauthorized computer access. For an Order awarding Oracle its attorneys’ fees and costs. proprietary. fixes. For an accounting. 41 COMPLAINT For damages to be proven at trial. 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. For an Order directing Defendants to return Oracle’s property.
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