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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
including the ones described above. an SAP America branch office location and home of its wholly-owned subsidiary SAP TN. and phone number) that did not match the customer at all. Indeed. to gain access to Oracle’s system under false pretexts. the access originated from an internet protocol (IP) address in Bryan. These “customer users” supplied user information (such as user name. For example. Oracle’s server logs have recorded access through this same IP address by computers labeled with SAP identifiers using SAP IP addresses. Oracle to date has identified more than 10.1 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. Across its entire library of Software and Support Materials in Customer Connection.com” and fake phone numbers such as “7777777777” and “123 456 7897. 8. 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 other cases. SAP users effectively swept much of the contents of Oracle’s system onto SAP’s servers. In many instances. email address.. The Bryan. SAP blended log-in information from multiple customers with fake information. Employing these techniques. 9.000 unauthorized downloads of Software and Support Materials relating to hundreds of different software programs. combined with phony user log-in information. Texas. Rather. Oracle has found many examples of similar activity. For example. SAP employees used the log-in IDs of multiple customers. This systematic theft of Oracle’s Software and Support Materials did not originate from any actual customer location. and downloaded Software and Support Materials even after the customer had dropped its support rights with Oracle. Texas IP address used to access and download Oracle’s Software and Support Materials is connected directly to SAP’s computer network. SAP TN is a company that purports to provide technical support services on certain versions of Oracle’s PeopleSoft and JDE software programs. this user information did not match anything: it was fake. or 4 COMPLAINT . Texas. 7. like Metro Machine Corp. In some cases. some users logged in with the user names of “xx” “ss” “User” and “NULL.” Others used phony email addresses like “test@testyomama.
1 ranked SAP.” Another mused. a software company acquired by PeopleSoft. Oracle had previously announced that in January 2005 it would complete its acquisition of PeopleSoft. and support. As explained below. consulting. and (c) support contracts to keep the software updated and upgraded. As a result of this illegal activity. * 11. 10.D.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. 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 . “Oracle Corp. in 2003. 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. through SAP America. and support technicians. Industry observers noted this fundamental shift in the competitive landscape. revenue comes from three basic activities: (a) license of the underlying software. aimed at taking market share from No. Inc. One industry analyst stated that. new customers of SAP TN – SAP AG’s and SAP America’s software support subsidiary whose sole purpose is to compete with Oracle.” 13. developers. SAP AG acquired SAP TN. Edwards World Solutions. is developing a ‘super set’ of applications. SAP apparently has now warehoused an extensive library of Oracle’s proprietary. SAP AG’s hasty acquisition of SAP TN was widely perceived as a response to the new competitive threat from Oracle. called Project Fusion. an independent software support company founded by former PeopleSoft software engineers. SAP’s own statements confirmed it. SAP AG spokesman Bill Wohl vowed that SAP AG would use SAP TN to “keep the pressure on 1 “JDE” refers to J. (b) consulting relating to the implementation and operation of the software. Oracle said it has thousands of developers building the new application suite. Oracle officially became a player on SAP’s turf. In January 2005. Not by coincidence. “After the acquisition of PeopleSoft earlier this year. * * In the world of enterprise software applications. 12. copyrighted Software and Support Materials.
explicitly designed to transition customers away from Oracle products and onto the SAP software platform. 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. SAP TN did not appear to have the development capability to meet the support commitments advertised in the “Safe Passage” brochures at any price.” In connection with the SAP TN acquisition. · A systematic pattern of “sweeping” Oracle’s Customer Connection support website from SAP TN servers just days before. or the day of.” and a sign that “SAP has taken the gloves off. SAP stole much of the Software and Support Materials directly from Oracle. As reported in industry publications. 15. by way of example. committed to throw “a lot of additional resources” behind SAP TN (which consisted of only 37 employees in total). with indications that this number may go significantly higher if traced further back in time. 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. the 6 COMPLAINT SAP’s unlawful copying and theft includes. SAP advertised this strategy as its “Safe Passage” program. or even come close to it. the . 14. Nevertheless. 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. Publicly.” Although SAP America President and CEO. a program aimed at siphoning off valuable software maintenance revenue from Oracle and persuading Oracle customers to switch software products [to 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.000 illicit downloads from Customer Connection between September 2006 and January 2007. It certainly did not match Oracle’s investment in development resources. Bill McDermott. following: · More than 10. crowed “There’s nothing that I love more than to win. much less the 50% discount promoted by SAP. SAP America’s CEO. Indeed.” 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.
unlawful.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. clearly-marked internal proprietary Oracle support documents not available even to licensed.” SAP has been engaged in a systematic program of unfair. Oracle has no adequate remedy at law for the harm threatened and caused by these acts. the indiscriminate. In short. 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. · On multiple occasions. · The improper access to. These illegal business practices threaten to cause irreparable harm to Oracle. and theft of. Through its illegitimate and illegal business practices. · Accessing and downloading Software and Support Materials across multiple product lines in multiple lines of business available on the Customer Connection support website. expiration of a new SAP TN customer’s support contract with Oracle. 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. or in some cases on behalf of former Oracle customers with no access rights to Oracle’s Software and Support Materials whatsoever. authorized customers or through normal access to Oracle’s Customer Connection system. 7 COMPLAINT . to try to “keep the pressure on Oracle. and to attempt to convert these customers to SAP software applications. in the purported name of customers that had never licensed those products and had no legal access to them. and its customers. SAP has taken Oracle’s Software and Support Materials and apparently used them to insinuate itself into Oracle’s customer base. its many employees. and deceptive business practices that continues to this day.
Oracle Corporation and Oracle USA are the licensees of the copyrights at issue in this action. SAP America is a wholly-owned subsidiary of SAP AG. OIC is a California corporation duly authorized to do business in the State of California. County of San Mateo. State of California. Germany. SAP TN is a wholly-owned subsidiary of SAP America. The corporate relationship of the three named defendants is set forth in the chart below. 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. 8 COMPLAINT . County of San Mateo. Texas.. 23. State of California. Oracle Corporation develops and licenses database and applications software programs and provides related services around the world. Inc. OIC is the owner of the copyrights at issue in this action. Walldorf. Oracle USA develops and licenses database and applications software programs and provides related services. Oracle Corporation is a Delaware corporation with its principal place of business in Redwood City. 19. SAP TN is a Texas corporation with its principal place of business in Bryan. (“PeopleSoft”) and JDE. Oracle USA is a Colorado corporation duly authorized to do business in the State of California. County of San Mateo. Pennsylvania. 20.1 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. 22. Oracle USA is the successor to PeopleSoft USA. Directly and through its subsidiaries. THE PARTIES 17. with its principal place of business in Redwood City. 18. with its only place of business in Redwood City. 21. 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.
27.S. promote. SAP America and SAP TN advertise. each of the Defendants. 25. inclusive. through its 100% ownership of SAP TN. at all material times. including Does 1 through 50. parent. partner. representative.S. Subsidiary) Oracle is currently unaware of the true names and capacities of Does 1 through 50. and therefore sues these defendants by such fictitious names. specifically in this judicial district. 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. whether individual. SAP America had both the right and authority to control the actions of SAP TN. servant. SAP AG (German Parent Corporation) SAP America (Wholly-owned U. SAP AG also holds an annual meeting of its Board of Directors in Palo Alto. partnership. and specifically this judicial district. employee.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. through its 100% ownership of both SAP America and SAP TN. alter ego. By way of example only. At all material times. Similarly. sell. Defendants all are doing business in and/or have directed their activities at California. was the agent. unincorporated association. joint venturer. Subsidiary) SAP TN (Wholly-owned U. SAP AG had both the right and the authority to control the actions of both corporations. Oracle will amend this Complaint to allege their true names and capacities when ascertained. affiliate. and support customers in California and in this judicial district. subsidiary. California. service. license. 26. or otherwise. At all material times. SAP AG negotiates and enters into software license and support agreements directly within the United States and. and finances the sales and promotional activities of both SAP America and SAP TN throughout the United States and in California. or co-conspirator of the others. corporation. had full knowledge of and gave substantial 9 COMPLAINT .
Venue in this district is appropriate.C.S. because a substantial part of the events giving rise to the dispute occurred in this district. and this Court has subject-matter jurisdiction over this action pursuant to 18 U.S.D. partnership. This Court has supplemental subject matter jurisdiction over the pendent state law claims under 28 U. § 1338. VENUE 30. and the Court has personal jurisdiction over each of the parties as alleged throughout this Complaint. and the Court will have subjectmatter jurisdiction over those claims pursuant to 28 U. Assignment is proper in this division under Civil L. JURISDICTION 28. § 1391.C. pursuant to 28 U. a substantial part of the property that is the subject of the action is situated in this district. affiliation. 17 U. Power & Associates’ global certification for outstanding service and support based 10 COMPLAINT . FACTUAL ALLEGATIONS A.C. et seq.S. employment.. Oracle will seek to amend this Complaint to add claims for copyright infringement under the Copyright Act. Oracle is the world’s largest enterprise software company. and the first to receive J. 29. § 1030(g) and 28 U. Oracle’s Software and Support Materials 32. III.C. §§ 1030 et seq. § 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. Oracle’s first cause of action arises under the Computer Fraud and Abuse Act.S.. each was acting within the scope of such agency. representation. § 1331. 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. 18 U. INTRADISTRICT ASSIGNMENT 31. or conspiracy. when the relevant copyright registrations issue. V.R. In addition. IV. VI.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. 3-2 (c) and (d).S.C. and in doing the things alleged. service.S. and each is legally responsible for the acts and omissions of the others.C. joint venture.C. §§ 101.S.
The Legal Download Agreement further restricts use of documents downloaded from the website: Permission to use Documents (such as white papers. WITHOUT LIMITING THE FOREGOING. In addition. 13 COMPLAINT . agree to additional legal restrictions. The terms further provide that the “software is part of the Licensed Products under the License Agreement” and “is made available for downloading solely for use by licensed end users according to the License Agreement. 41. 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”). 42. datasheets and FAQs) from this server (“Server”) is granted. These terms notify the user that the software available to download from Oracle is Oracle’s copyrighted material. and (3) no modifications of any Documents are made. the user must click on a button indicating that it accepts these terms. Use for any other purpose is expressly prohibited. users accessing specific materials. such as a Software Application Request (“SAR”) through the SAR Search Web Application. The Software is part of the Licensed Products under the License Agreement and may only be downloaded if a valid License Agreement is in place between you and Oracle / PeopleSoft / JDEdwards. product or upgrade announcements. software action requests.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JDEdwards and/or its affiliates or suppliers.” To download a SAR. press releases. Any reproduction or redistribution of the Software not in accordance with the License Agreement is expressly prohibited. COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. 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. provided that (1) the below copyright notice appears in all copies and that both the copyright notice and this permission notice appear.
000 people joining by Webcast and phone. SAP AG’s top executives publicly downplayed the threat that a combined Oracle and PeopleSoft entity would pose to its competitive position for business software applications. But SAP AG had no answer for the business proposition the new Oracle offered. Oracle would “not [be] a competitor which could really hurt us. As SAP AG reeled.000 business applications software customers throughout the world. the combination revitalized Oracle overnight as a competitor in the business software applications business. Rather than improve its own products and offerings. or intellectual property rights to. As SAP America’s Vice President of Operations. On January 7. 44. 46. how the nearly 50. 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.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. 14 COMPLAINT . he even claimed to wish Oracle “good luck” in competing with SAP AG. 2005. 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. Oracle launched the newly-united company and unveiled. events unfolded at a rapid pace: eleven days after its announcement. SAP AG suddenly found itself in a far different competitive environment than the one in which it had grown comfortable. testified on June 23. size. Oracle Threatens To Unseat SAP 43. SAP AG instead considered how to undermine Oracle.000-strong combined workforce of Oracle and PeopleSoft would provide unparalleled innovation and support to 23. these same products. broader product line of enterprise applications software programs to compete against SAP AG. but now Oracle offered a deeper. at its headquarters with more than 48. SAP AG CEO Henning Kagermann claimed that even with PeopleSoft. Not only do many SAP AG customers use Oracle’s superior database software programs. 2004 at the trial on the Department of Justice’s unsuccessful effort to block Oracle’s acquisition of PeopleSoft. 45. and geographic and product scope.” After the merger. Richard Knowles. despite not owning any of the software code for.
SAP TN president Andrew Nelson got “the magic phone call” from Jim Mackey. So SAP AG had to make the price right. and to use SAP TN to do it. SAP AG proposed to buy SAP TN outright and make it a wholly-owned – and wholly-beholden – subsidiary. because to the extent SAP AG successfully undermined Oracle by having its customers move from Oracle’s software to SAP AG’s software.” D.” Aligning with SAP AG made little sense for SAP TN. As one industry observer put it. JDE. but – with the Oracle/PeopleSoft 15 COMPLAINT . In December 2004. it instead focuses on simply keeping the software up and running for an annual fee. often outdated. As described in a glossy spread in a leading industry publication. As one industry journalist explained. just weeks before Oracle would close the PeopleSoft acquisition. in December 2004. and later. To retain full control over every detail of its scheme to lure away customers from Oracle.” 49. Oracle.” Mackey made Nelson an offer “he couldn’t refuse. Texas and founded by former PeopleSoft employees. however. SAP TN was a small software services company. SAP AG’s “front man for SAP AG’s mergers and acquisitions strategy. by providing low-cost maintenance and support services to PeopleSoft and JDE customers running assorted versions of these software programs. Acquiring SAP TN was not a mere investment by SAP AG. SAP AG bought “another arrow in its quiver to hunt after Oracle’s customers. 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.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 TN would eventually lose its customer base. headquartered in Bryan. SAP TN 47. SAP AG has refused to disclose the terms of its SAP TN purchase. SAP Responds To Oracle Competition With Its “Safe Passage” Scheme 48. 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. It claimed to compete with PeopleSoft. but a calculated competitive move. 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.
We want them to be successful. at the SAP AG annual meeting. Henning Kagermann. SAP would offer cut-rate pricing combined with the promise of essentially unlimited future support to former PeopleSoft and JDE support customers. SAP TN’s new parent companies directed it to begin to implement a two-phase plan to increase SAP’s enterprise application market share. 2005. In April 2005.” 51. SAP America’s CEO. After the acquisition. The CEOs stated the proposition more bluntly.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. SAP AG’s top executives unveiled SAP AG’s acquisition of SAP TN as the centerpiece of its new “Safe Passage” scheme. SAP would aggressively campaign to migrate those customers to an SAP enterprise software platform.” The Senior Vice President and Chief Operating Officer of SAP Asia Pacific. in barely a month. publicly indicating that SAP TN was authorized and intended to implement SAP AG’s goals.” 16 COMPLAINT . SAP AG’s CEO. Andrew Nelson. SAP AG would try to use SAP TN as a means of “speeding-up” the migration of PeopleSoft and JDE users to SAP platforms. to lure the support business over. stated. On January 19. Second. “We're owned by SAP. admitted that the SAP TN acquisition was “an integral part” of SAP’s Safe Passage program. ease integration with SAP NetWeaver(TM) and begin the process of innovating their businesses today. which in turn was part of SAP’s “ongoing strategy to compete with Oracle. SAP America CEO Bill McDermott claimed “The SAP Safe Passage offering gives companies an affordable way to protect their current investments. Bill McDermott. Colin Sampson. First. identified SAP TN as instrumental to the parent company’s “Safe Passage” program. 52. SAP TN agreed to the deal and cast its lot with SAP AG.” And SAP TN certainly knew its role was to achieve SAP AG’s ends: as SAP TN’s CEO. 50. in connection with converting Oracle customers to SAP support (via SAP TN). publicly vowed to bankroll this effort to undermine Oracle by putting “a lot of additional resources into TomorrowNow.” A month later. As SAP AG Managing Director Alan Sedghi admitted. 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.
it took a hands-on approach.” 54. consider another option: SAP. SAP AG did not simply sit back and leave the recruiting of potential Safe Passage customers to SAP TN’s sales force.” To exploit the fear it intended to create. PeopleSoft and JDE customer uncertainty about the prospects for long-term. Beginning in January 2005. SAP sales representatives unleashed a torrent of marketing materials designed to exacerbate and leverage perceived. quality support from Oracle.000 direct mail solicitations to Oracle customers. and Siebel customers – If Oracle’s options have you worried. If customers declined to convert to SAP TN. the SAP AG sales personnel would pressure the customers to drop Oracle products outright in favor of SAP AG’s suite. 55. JD Edwards. To give teeth to these commingled sales efforts.” 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. officially “bundled” with SAP AG enterprise software as a centerpiece of the Safe Passage program. SAP provides solutions. Instead.” and elsewhere says that “Safe Passage maintenance and support are delivered worldwide through TomorrowNow. albeit unfounded. An April 2005 SAP AG press release apparently aimed to increase perceived doubt among Oracle customers by announcing a “second wave” of “Safe Passage. SAP AG’s “second wave” included “an intensive customer recruitment campaign. offering significantly lower cost maintenance alternatives to Oracle customers running PSFT/JDE solutions” through 70. technology and maintenance services. SAP implemented Phase One immediately. It deployed its salespeople to contact potential customers and push them to switch to SAP TN’s services.” (emphasis supplied) SAP America’s website promises that “SAP and TomorrowNow can cut your maintenance costs by as much as 50% through 2015. These lower cost alternatives advertised by SAP AG were to come directly through 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 53. To implement Phase Two of its plan (luring Oracle customers to the SAP enterprise software platform). 17 COMPLAINT . SAP AG offered maintenance support through SAP TN. As reflected on SAP AG’s website: “SAP offers Safe Passage for PeopleSoft.
” 57. the program it implemented partly through SAP TN.” including because SAP AG “extended the program in order to offer it as well to Siebel 18 COMPLAINT . 58. SAP announced it would extend its Safe Passage program to Siebel customers. boasted that Safe Passage “continues to do really well. 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. However. By March 2006. maintenance services. technology. .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.” How SAP could offer instantaneous.’s own products [the Siebel products] for a far cheaper price. Bill McDermott. SAP AG’s President of Customer Solutions and Operations. .” but its services were expanded to support more Oracle product lines and a wider range of customers. investment protection and a clear road map to the next generation of business software. At the same time. that it will offer technical support for more of rival software maker Oracle Corp. 2005 announcement that it would acquire Siebel Systems. as Oracle continued to take market share and expand its product offerings. In a July 2006 earnings call. SAP executives touted the Safe Passage program’s limited success in its first year. round the clock Siebel code support within a few weeks of Oracle’s acquisition announcement remained a mystery. 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.com after Oracle’s announcement of its impending Siebel acquisition. Léo Apotheker. including through its September 12. SAP AG’s CEO. curiously. By July 2006. SAP AG continued to tout the success of Safe Passage. SAP AG CEO Henning Kagermann conceded that SAP had lost as much as 2% market share to Oracle. and more aggressive. SAP America President and CEO. promised SAP AG would use SAP TN and the Safe Passage program to “fight for” more customers. “SAP AG plans to announce . As reported on Forbes. SAP AG boasted in a press release that more than 200 customers had signed up for Safe Passage. and which it claimed “offers companies SAP solutions. Henning Kagermann. In October 2005. companies and corporate cultures.” SAP’s “cheaper price” (referred to elsewhere as “cut rate” support) continued at “50 cents on the dollar for maintenance fees. SAP grew more desperate.
and other labor-intensive support items that a customer would need to maintain useful. F. To stave off the mounting competitive threat from Oracle. patches.” “fixes for serious issues.” and. maintains a development force of more than 15. Oracle Finds A Suspicious Pattern To analyze and improve on its industry leading support services. simply did not add up. “customized ongoing tax and regulatory updates. 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. Oracle.” By extending the Safe Passage program to Siebel customers. could actually develop and offer the hundreds of regulatory updates. “30-minute response time. A Deal Too Good To Be True 59. 62. 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. some industry analysts wondered whether a small company like SAP TN.” “full upgrade script support. Oracle asks each customer searching for a solution on Oracle’s Customer Connection website to click on a button after each search to indicate whether or not a particular search result helped solve the 19 COMPLAINT . and purported to add full support for an entirely different product line – Siebel – with a wave of its hand. Oracle has now solved this puzzle. SAP unlawfully accessed and copied Oracle’s Software and Support Materials. without infringing on Oracle’s intellectual property. Apotheker claimed that SAP now had “a global network of [SAP TN] capabilities” – enough to “gain significant traction. even after having expanded its ranks to 150 employees. and in conjunction with opening new SAP TN offices around the world. 61. most remarkably. bug fixes. To compound the puzzle. It was not clear how SAP TN could offer. 60. as it did on its website and its other materials.000 software and support engineers to create and help implement the code fixes. optimally functioning Oracle 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 customers.” E. and the logic. and updates that comprise the advanced support services required by Oracle’s licensed customers. patches. by comparison.
64. apparently. in the month before a customer’s Oracle support expired. to take a copy of them all. These clicks numbered in the thousands for several customers. Oracle also discovered that the downloaded Software and Support Materials included internal documents not available even to licensed customers and not available through normal. Frequently. employing the customer’s log-in credentials. the support system responds by offering the customer further options. 63. unexplained spikes in the number of customers on the online support website who had clicked the “No. these clicks could not reflect real responses from any human customers actually reading the solutions they had accessed. Indeed. with the aim of continually improving the support system for customers. would access Oracle’s system and download large quantities of Software and Support Materials. In late 2006. Oracle regularly compiles this data to assess whether its system helped customers resolve their support issues. And. and Oracle discovered that each response – each answer by users pretending to be the customer – occurred in a matter of seconds or less. including dozens. 2. continue search” option. Some of these apparent customer users even downloaded materials after their contractual support rights had expired. 20 COMPLAINT . 65. or thousands of products beyond the scope of the specific customer’s licensed products and permitted access. If the customer selects the “No. Oracle soon discovered that many of these “customers” had taken massive quantities of Software and Support Materials beyond their license rights. In the course of this investigation. authorized use 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 customer’s problem. continue search” option. Given the extreme speed at which the activity occurred. a user purporting to be that customer. Instead. Oracle noticed huge. 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 discovered a pattern. 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. hundreds. over and over again.
· Not to access the customer support system if it is not the customer’s authorized and designated Oracle technical support contact.D. (4) Mel Gadd. and (6) Shelley Nelson.P. including: (1) Andrew Nelson. President and CEO. North American Sales. distribute. relicense. or lease the Software or Documentation.P. for third party use. · That the customer username and password are for the customer’s sole use in accessing this support server. SAP TN’s management. V. · 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.P. Global PeopleSoft Support. use. Of SAP TN’s tenmember management team. (5) Nigel Pullan. V. SAP TN has intimate familiarity with these important restrictions and conditions relating to Oracle’s Software and Support Materials. six list prior employment experience with PeopleSoft. · That the Materials on the support website are confidential information subject to existing confidentiality agreements. International Sales. Edwards Support. (3) Laura Sweetman. or third party training. Quality. V. sublicense. or Oracle. or any portion thereof. V. rent. JDE. V. In addition. and a significant number of its employees. (2) Bob Geib.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70. formerly worked at PeopleSoft and JDE. Global J. disclose.P. such as Wade Walden. · 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. 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. former PeopleSoft employees who work for SAP. who is reflected as the person performing many of the downloads at issue.P.
S. Such acts constitute copyright infringement under 17 U. Inc. and in conscious disregard of Oracle’s protected intellectual property and the integrity of its computer systems. create derivative works.S. AbitibiConsolidated. SPX Corporation. B. Texas Association of School Boards. and covers too many individual violations. Mortice Kern Systems. NGC Management Limited. S. 75. reproduce.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. Abbott Laboratories. Fuelserv Limited. By way of example 24 COMPLAINT . Merck & Co.. Laird Plastics.V. § 501 and also willful and intentional copyright infringement under 17 U. Metro Machine Corp. 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. Oracle’s Customer Connection website is too pervasive. publish.C. Honeywell International.S. §§ 101 et seq. 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. Smithfield Foods. 17 U. Accordingly.. Inc. SAP TN’s acts violated Oracle’s exclusive rights to use. Distribution & Auto Service. Border Foods. Ronis. and therefore committed its theft knowingly and intentionally. Stearns & Co. SAP TN reviewed and agreed to the terms and conditions on Oracle’s support website before proceeding. offer for sale. VSM Group AB..C.. Herbert Waldman. Berri Limited. and taking from.. With literally thousands of software programs available for licensing. Bear. 74.. Caterpillar Elphinstone. Specific Examples Of SAP TN’s Unlawful Customer Downloads SAP TN’s improper access to.C. Helzberg Diamonds. to comprehensively detail here. Stora Enso. 4. and Yazaki North America. 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. display. § 506. Oracle has uncovered unlicensed downloads linked to SAP TN on behalf of numerous customers.. OCE Technologies. and impose strict confidentiality requirements.A. Interbrew UK. and distribute these works. Grupo Costamex. including without limitation. National Manufacturing.
Oracle subsequently connected many of the illegal downloads to an SAP TN IP address and to SAP TN’s employee. the unauthorized downloads did not stop there. Most of these excessive downloads came during the course of four days. 2007. it averaged just over 20 downloads of Software and Support Materials per month. “Honeywell” downloaded over 450 distinct unlicensed solutions on January 16. Many of these “Merck” downloads came directly from an IP address in Bryan.000 of the Software and Support Materials taken in this period were solutions that Honeywell was not licensed to take at all. 2007 and nearly 400 more the next day. Inc.000 of these downloads related to JDE software products for which Merck had no license. (“Merck”). 25 COMPLAINT . In the approximately three and a half year period before Honeywell switched to SAP TN. Merck & Company.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.000 distinct Software and Support Materials for JDE software. Oracle sets forth below illustrative instances of SAP TN’s illegal conduct regarding a few of its customers. a user employing Honeywell’s log-in ID downloaded over 7. Over 2. 76. Honeywell used and licensed PeopleSoft software applications. Merck. In one specific library containing solutions for Enterprise One software. Then. This unlawful downloading even stretched across product families. one of the largest pharmaceutical companies in the world. users purporting to be “Merck” logged into the Oracle support system and downloaded over 9. but Oracle discovered users downloading JDE products with Honeywell’s credentials. during which “Honeywell” was downloading almost 1800 solutions per day. after switching to SAP TN. More than 5. In the three months prior to that date. But. licenses and receives support for many Oracle software products. Honeywell. 77. 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. Wade Walden – a former PeopleSoft employee now employed by SAP. Users logging into Oracle’s support system with Merck’s credentials continued to download Software and Support Materials into March 2007.000 Software and Support Materials in less than two weeks in January 2007. Merck’s support rights for its JDE software products expired on January 1. Honeywell International (“Honeywell”) is listed on SAP TN’s website as a client.
using names such as “xx” “ss” and “NULL. and some were traced to a computer with SAP TN’s initials in the title. SAP TN users logged into Oracle’s support system using OCE’s credentials (and. “TNL-02. 78.” and phone numbers such as “4444444444” and “999 999 9999. OCE-Technologies B. Like the other companies.000 distinct Software and Support Materials. (“OCE”) is located in the Netherlands and appears as a customer on SAP TN’s website. OCE. since OCE does not run many of the software programs to which these downloads relate. in some cases.” 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.” In many cases. and could serve no legitimate or lawful business purpose.” Similar to the other customer examples. many of these “OCE” users entered phony identification information. these illegal downloads are associated with the same IP address belonging to SAP TN in Bryan. and neither OCE nor SAP TN have any license. There is little chance that SAP TN intended OCE as the beneficiary of these massive sweeps. false user names) and downloaded over 12. or other right to access and download these Software and Support Materials. such as the name “user” and phone numbers such as “123 456 7897.” and even “xxx xxx xxxx.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Texas that belongs to SAP TN. In the months leading up to the expiration of OCE’s support rights for its Oracle products. “TN-DL03.” “9999999999. These downloads included over 3.000 distinct items for which OCE had no license. including specifically to a computer with SAP TN’s initials in the title. users employing OCE’s credentials downloaded a large number of Oracle products relating to US Payroll. Homebuilder Management. and Real Estate Management – none of which make sense coming from a European customer in support of its European business.V.” Neither Merck nor SAP TN had any license. 26 COMPLAINT . SAP TN users employed fake identification information to download the Software and Support Materials. Canadian Payroll. From December of 2006 to January of 2007. authorization. authorization or other right to access and download the 5. Texas.000-plus unlicensed Software and Support Materials from Oracle.
For the nine month period prior to October 2006.” Many of these SPX downloads.000 distinct Oracle Software and Support Materials (far more than SPX could legitimately access or use). G. SPX Corporation (“SPX”) dropped all Oracle support on December 10.” 80. (“Metro Machine”) dropped all Oracle support effective on January 1. These SPX downloads included over 1. SAP TN. In addition. SPX averaged approximately eleven downloads per month from Oracle’s support system. users purporting to represent SPX accessed and downloaded over 8. at SAP AG’s and SAP America’s direction. 2007 and switched to SAP TN. SAP AG and SAP America directed this 27 COMPLAINT . Oracle has traced these illegal and unauthorized downloads to the same SAP TN IP address employed for the Honeywell downloads described above. In the month before Metro Machine dropped its support rights with Oracle. SAP TN now claims to have delivered thousands of fixes and more than 800 tax and regulatory updates to Oracle’s former customers.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. 2006 and became an SAP TN customer. 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 79. but used fake identification information like the name “NULL” and phone numbers like “7777777777” and “999 999 9999. Metro Machine Corp. users purporting to represent Metro Machine logged onto Oracle’s support servers and downloaded nearly 6. like the others. Nearly 400 of those downloads related to software programs that Metro Machine had not licensed from Oracle.000 distinct Software and Support Materials. 2006 were Software and Support Materials related to unlicensed Payroll software. illegally downloaded thousands of fixes and updates from Oracle’s restricted customer support website. these users logged in using SPX credentials. SAP Adds The Ill-Gotten Gains To Its Coffers 81. Then. Not coincidentally. Over 300 distinct downloads just on November 30. “tn-wts01. SPX. originated from the same IP address belonging to SAP TN. listed on its website. as reflected on SAP TN’s website. and some were traced to a computer with SAP TN’s initials in the title. between October and December 2006. Metro Machine.
and by means of such conduct furthered the intended fraud and obtained one or more things of value. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. 85.C. First Claim for Relief Violation of Federal Computer Fraud and Abuse Act (18 U. accessing a protected computer. without authorization or by exceeding authorized access to such a computer. § 1030(a)(4) by knowingly. 18 U. Defendants have violated the Computer Fraud and Abuse Act. SAP has thereby caused significant damage to Oracle through its SAP TN subsidiary.C. information. Defendants have violated the Computer Fraud and Abuse Act. 84.C.C. current. §§ 1030(a)(2)(C) & (a)(4) & a(5)) (By Oracle Against All Defendants) 82.1 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. code. 18 U.S. interference with Oracle’s business relationships. by intentionally accessing a computer used for interstate commerce or communication. Using Oracle’s own protected property to unfairly compete against and undercut Oracle. Defendants have violated the Computer Fraud and Abuse Act. SAP has illegally converted Oracle’s former. ratified it. and related computer fraud.S.S. and with intent to defraud Oracle. 18 U. in addition to the irreparable harm caused by Defendants’ unfair competition. or command and as a result intentionally causing damage without authorization to a protected computer owned by Oracle. and by obtaining information from such a protected computer. trespass on Oracle’s support website. and never disavowed it. including but not limited to Oracle’s Software and Support Materials. and prospective customers and the associated license and support revenue to artificially inflate its market share.S. 83. § 1030(a)(5)(A)(i) by knowingly causing the transmission of a program. § 1030(a)(2)(C). without authorization or by exceeding authorized access to such a computer. 28 COMPLAINT .
in an amount well over $5000 aggregated over a one-year period. Unless restrained and enjoined. 92. Oracle’s remedy at law is not adequate to compensate it for these inflicted and threatened injuries.S. Defendants have violated California Penal Code § 502(c)(6) by knowingly.S. including. in any event. The computer system or systems that Defendants accessed as described above constitute a “protected computer” within the meaning of 18 U. copying. and without permission providing. and/or computer network. fraudulently. computer system. a means of accessing Oracle’s computers. 93. Defendants have violated California Penal Code § 502(c)(2) by knowingly and fraudulently. and without permission accessing and using Oracle’s computer services. 87. § 1030(g). 29 COMPLAINT . 18 U. recklessly or without due regard for their actions. Defendants have violated the Computer Fraud and Abuse Act. Oracle has suffered damage and loss by reason of these violations.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. 88. fraudulently. without limitation.Cal. 89. and making use of programs. programs. causing damage to Oracle. entitling Oracle to remedies including injunctive relief as provided by 18 U.C. and/or computer network.S. accessing. and without permission. Second Claim for Relief Computer Data Access and Fraud Act . and files from Oracle’s computers. §§ 1030(a)(5)(A)(ii) & (iii) by intentionally accessing a protected computer without authorization. and computer systems and other losses and damage in an amount to be proved at trial. 91. taking. computer system. Penal Code § 502 (By Oracle Against All Defendants) 90. harm to Oracle’s data. or assisting in providing. § 1030(e)(2).C. Defendants’ unlawful access to and theft from Oracle’s computers also have caused Oracle irreparable injury. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here.C. Defendants will continue to commit such acts. data. but. Defendants have violated California Penal Code § 502(c)(3) by knowingly.
Defendants have caused damage to Oracle in an amount to be proven at trial. 96. 97. or causing to be accessed. 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. Oracle’s computers. These relationships contained the probability of future economic benefit in the form of profitable support service contracts and software licenses. Oracle has also suffered irreparable injury from these acts. has no adequate remedy at law. entitling Oracle to injunctive relief. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. Had Defendants refrained from engaging in the unlawful and wrongful conduct described in this complaint. As a direct and proximate result of Defendants’ unlawful conduct within the meaning of California Penal Code § 502. Oracle has an expectancy in continuing and advantageous economic relationships with current and prospective purchasers and licensees of Oracle’s support services and software. Oracle is also entitled to recover its reasonable attorneys’ fees pursuant to California Penal Code § 502(e). 95. computer system. and/or computer network. Defendants have violated California Penal Code § 502(c)(7) by knowingly. and due to the continuing threat of such injury. 100.1 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. Third Claim for Relief Intentional Interference With Prospective Economic Advantage (By Oracle Against All Defendants) 99. there is a 30 COMPLAINT . fraudulently. 98. Oracle owns the data that comprises the Software and Support Materials obtained by Defendants as alleged above. and without permission accessing. Oracle is therefore entitled to punitive damages. 101.
C. but not limited to. 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. conversion. or expanded support contracts and software licenses with Oracle rather than Defendants. causing certain current and prospective support clients to contract with Defendants instead of Oracle for their software support and maintenance and. § 1343. Cal. renewed.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. but not limited to. for their enterprise software. Defendants’ conduct also constitutes trespass to chattels. 104. receipt of stolen property. loss of profits from sales or licenses to 31 COMPLAINT . fraud and related activity in connection with an access device.S. This conduct. Cal. §§ 270111.S. including. § 1029. On information and belief. 18 U.. violation of RICO.C. 18 U.C. 18 U. including. 103.C.S. § 1962. copied Oracle’s intellectual and contractual property. and conspiracy. Penal Code § 502. 102. Penal Code § 496. the above-described relationships have been actually disrupted. and without the cost of competing fairly by independently developing the same support materials. 106. 105.S. violation of the Federal Computer Fraud and Abuse Act. in some cases. unjust enrichment. unauthorized access to computers. These acts were undertaken by Defendants to obtain for themselves the software support contract revenue at Oracle’s expense. Defendants gained unauthorized access to Oracle’s password-protected Customer Connection support website through false or improper credentials.C. § 1030 et seq. Oracle has suffered economic harm. constitutes violations of numerous state and federal statutes and codes. As a direct and proximate result of Defendants’ actions. As a result of Defendants’ acts. wire fraud. and ultimately to migrate such customers away from Oracle’s software programs and onto their own. 18 U. and used that property to obtain and retain Oracle’s current and prospective clients. Defendants’ conduct was wrongful by a measure beyond the fact of the interference itself. as alleged above. and violation of the Stored Communications Act.S. 18 U.
malicious. described above. Fourth Claim for Relief Negligent Interference With Prospective Economic Advantage (By Oracle Against All Defendants) 109. their actions are likely to recur and will cause Oracle irreparable injury for which there is no adequate remedy at law. Oracle has an expectancy in continuing and advantageous economic relationships with current and prospective purchasers and licensees of Oracle’s support services and software. or expanded support contracts and software licenses with Oracle rather than Defendants. Defendants’ interference with Oracle’s prospective economic advantage with its current and future customers. renewed. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. oppressive. there is a substantial probability that Oracle support customers would have initiated. Defendants knew or should have known about the economic relationship.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 current and potential customers of Oracle support services and software programs. Defendants failed to act with reasonable care. 108. Had Defendants refrained from engaging in the unlawful and wrongful conduct described in this complaint. was willful. 112. they used Oracle’s Software and Support Materials to obtain and retain for themselves software 32 COMPLAINT . 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. Defendants’ wrongful conduct was a substantial factor in causing this harm. These relationships contain the probability of future economic benefit in the form of profitable support service contracts and software licenses. Unless Defendants are restrained by appropriate injunctive relief. 107. and in conscious disregard of Oracle’s rights. Instead. 110. 111. as described above.
S.S. Defendants’ conduct also constitutes trespass to chattels. 18 U. 33 COMPLAINT . Penal Code § 496. and violation of the Stored Communications Act. 18 U. Cal. Penal Code § 502. As a direct and proximate result of Defendants’ actions. §§ 270111. § 1962.C. § 1030 et seq. constitutes violations of numerous state and federal statutes and codes. and conspiracy. 117.1 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.S. but not limited to. fraud and related activity in connection with an access device. unauthorized access to computers. 114. Defendants’ wrongful conduct was a substantial factor in causing this harm.C. 113. and used that property to obtain and retain Oracle’s current and prospective clients. their actions are likely to recur and will cause Oracle irreparable injury for which there is no adequate remedy at law. the above-described relationships have been actually disrupted. Oracle has suffered economic harm. violation of RICO. 115. but not limited to. 18 U.S. including. § 1029.C.C. unjust enrichment. in some cases.C. § 1343. conversion. As a result of Defendants’ acts. loss of profits from sales to current and potential customers of Oracle support. This conduct. Cal.S. including. violation of the Federal Computer Fraud and Abuse Act. receipt of stolen property. Unless Defendants are restrained by appropriate injunctive relief. and software products. wire fraud. Defendants gained unauthorized access to Oracle’s password-protected Customer Connection support website through false or improper credentials.. 18 U. 116. copied Oracle’s intellectual and contractual property. Defendants’ conduct was wrongful by a measure beyond the fact of the interference itself. as alleged above. 18 U. maintenance. for their enterprise software. causing certain current and prospective support clients to contract with Defendants instead of Oracle for their software support and maintenance and.
and unfair competition as defined by California Bus. Bus. receipt of stolen property.C. § 1962. et seq. § 1029. Fifth Claim for Relief Unfair Competition . 121. Code §§ 17200. Cal. and other illegal acts and practices as alleged above. conversion. trespass.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. unlawful. Defendants’ conduct also constitutes trespass to chattels.C. 119.S. conversion. 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. but not limited to. violation of the Computer Fraud and Abuse Act. intentional interference with prospective economic advantage. wire fraud. Penal Code § 502. unauthorized access to computers. 18 U. proprietary. and copyrighted Software and Support Materials. 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. 18 U.S. unjust enrichment. fraud and related activity in connection with an access device. In light of Defendants’ conduct.C.C. Defendants’ conduct constitutes violations of numerous state and federal statutes and codes. & Prof.S. Defendants have engaged in unlawful business acts or practices by committing acts including computer fraud. 122.S. 120.S. §§ 1030 et seq. §§ 2701-11. Penal Code § 496. negligent interference with prospective economic advantage. Cal. 18 U. § 1343. 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. 123. violation of RICO..Cal. including. and conspiracy. 34 COMPLAINT . 18 U. all in an effort to gain unfair competitive advantage over Oracle. The acts and conduct of Defendants constitute fraudulent. & Prof. Defendants have improperly and unlawfully taken commercial advantage of Oracle’s investment in its confidential.C. interference with business relationships. and violation of the Stored Communications Act. 18 U.
and deceptive business practices. will continue to suffer irreparable injury.. but not limited to. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. to Defendants’ copying. compensation. and should be enjoined from further unlawful. Instead of paying Oracle for the use of its property. or distribution of such property. 35 COMPLAINT . 126. Defendants intentionally and willfully entered Oracle’s password-protected Customer Connection support website without permission and took possession of Oracle’s property. and benefits they may have obtained in violation of California Business & Professions Code § 17200 et seq. all of which Oracle stored on its computer system. Oracle has also suffered irreparable injury and. Sixth Claim for Relief Conversion (By Oracle Against All Defendants) 127. retention. earnings. in their possession. 125.1 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. As a result of such unfair competition. removal. Defendants should further be ordered to return all materials taken from Oracle. Oracle at no time consented. This property is the sole and exclusive property of Oracle. Oracle has an exclusive right to possession and distribution of such property. Defendants’ unfair business practices have unjustly minimized Oracle’s competitive advantage and have caused and are causing Oracle to suffer damages. custody. expressly or impliedly. 129. but not limited to. proprietary. and copyrighted Software and Support Materials. or control. whereby Oracle has no adequate remedy at law. 128. Defendants should be compelled to disgorge and/or restore any and all revenues. unfair. profits. including. which is valuable to Oracle and vital to its continued business operations. and all copies of such. 130. including. unless Defendants are enjoined from such unfair competition. Oracle’s confidential. downloading. returning the value of the stolen property itself and any revenue earned from it.
with interest. 36 COMPLAINT . Oracle is entitled to damages and repossession of the converted property. and will continue to lose. at the latest. 137. profits from potential purchasers of Oracle support services and licensees of Oracle software products. or in the alternative. At all times mentioned in this Complaint. or in the alternative. Oracle will seek its election of remedies at trial. its access-restricted internet-based 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 has lost. 132. Seventh Claim for Relief Trespass To Chattels (By Oracle Against All Defendants) 136. 135. and the Software and Support Materials on that support system.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 131. Defendants may have been obtaining unjust and substantial benefit from the sale and distribution of Oracle’s property to third parties without Oracle’s consent and without paying Oracle for the value of such property. 133. 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. Oracle is entitled to restitution of the Defendants’ ill-gotten gains. as described above. Oracle is entitled to an award of the value of the property taken. Defendants have been in knowing and unauthorized possession and control of such property since at least between September 2006 and the present. in an amount to be determined at trial. Defendants’ wrongful conduct was a substantial factor in causing this harm. 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. Since that time. Oracle had legal title to and actual possession of Customer Connection. In addition. In addition. 134.
Defendants unjustly received benefits at the expense of Oracle through their wrongful conduct. Oracle is entitled to recover any and all damages it sustained as a result of such trespass. 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. As a result. Defendants will continue to commit such acts and other competitors will be encouraged to sweep Oracle’s website. 143. as well as Defendants’ trespass on. 140. Defendants’ trespass and interference proximately caused damage to Oracle. Eighth Claim for Relief Unjust Enrichment/Restitution (By Oracle Against All Defendants) 142. Defendants’ trespass therefore threatens to cause irreparable harm to Oracle. and damaged. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. which took substantial time and money for Oracle to develop. the integrity and functionality of Oracle’s computer system and data. and the Software and Support Materials housed for licensed access through Customer Connection. damage to the functionality of Oracle’s computer system and data. but not limited to. and damage to the confidential and copyrighted nature of the information on Oracle’s website. Defendants continue to unjustly retain these benefits at the 37 COMPLAINT . computer fraud concerning. damage to Oracle’s rights to dominion and control over its property. and conversion of the Software and Support Materials.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 138. Defendants caused Oracle’s property to greatly diminish in value and deprived Oracle of the intended use of its computer systems. Defendants intentionally interfered with Oracle’s use or possession of both Customer Connection and Oracle’s related internal databases and systems. in an amount to be determined at trial. including. including Defendants’ interference with Oracle’s business relationships and other unfair business practices. for which Oracle’s remedy at law is not adequate to compensate it for the injuries inflicted and threatened. Defendants’ trespass interfered with. 141. 139.
that agreement and/or furthered the conspiracy by cooperating. 149. including. and knowingly agreed and conspired with each other to engage in the alleged wrongful conduct. Defendants did the acts alleged pursuant to. damage. and in furtherance of. 38 COMPLAINT . Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. Defendants’ intentional agreement to commit. 147. Ninth Claim for Relief Civil Conspiracy (By Oracle Against All Defendants) 145. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. these wrongful acts was willful. and in conscious disregard of Oracle’s rights. and conversion of the Software and Support Materials.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 expense of Oracle. and commission of. oppressive. malicious. including Defendants’ interference with Oracle’s business relationships and other unfair business practices. computer fraud concerning. Oracle is accordingly entitled to full restitution of all amounts in which Defendants have been unjustly enriched at Oracle’s expense. 146. but not limited to. As a direct and proximate result of the acts in furtherance of the conspiracy. loss of profits from sales to current and potential customers of Oracle support services and licenses for Oracle’s software programs. Oracle has suffered injury. encouraging. 144. It would be unjust for Defendants to retain any value they obtained as a result of their wrongful conduct. 148. as well as Defendants’ trespass on. and harm. intentionally. The wrongful conduct committed pursuant to the conspiracy was a substantial factor in causing this harm. or adopting the acts of the others. ratifying. loss. Defendants willfully.
loss of profits from sales to current and potential customers of Oracle support services and licenses to Oracle 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 28 155. and in conscious disregard of Oracle’s rights. was wrongful in and of itself. and conversion of the Software and Support Materials. as well as Defendants’ trespass on. including. separately considered. damage. 154. loss. 150. by providing substantial assistance and/or encouraging the others to act. Oracle has suffered injury. Defendants also aided and abetted the described wrongful conduct of the other Defendants by giving substantial assistance and/or encouragement that. 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. 153. but not limited to. As fully described above. computer fraud concerning. Defendants had full knowledge or should have reasonably known of the true nature of the wrongful conduct of each other Defendant. The wrongful conduct aided and abetted by the Defendants was a substantial factor in causing this harm. 39 COMPLAINT . and aided and abetted such wrongful conduct. 152. and harm. As a direct and proximate result of the aiding and abetting of these acts. 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. oppressive. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. Defendants’ aiding and abetting of these wrongful acts was willful. including interference with Oracle’s business relationships and other unfair business practices. malicious. 151.
Defendants have received money as a result of their misconduct. and those in active concert or participation with any of them from: (1) accessing any Oracle restricted-access or customer 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 28 156. therefore. and attorneys. (d) Fraudulently accessing and intentionally trespassing on Oracle’s password-protected Customer Connection website. their officers. or using any property obtained from Oracle’s website. and copyrighted Software and Support Materials. at Oracle’s expense. internal documents. and unlawfully taking commercial advantage of Oracle’s investment in its Software and Support Materials. including without limitation the Customer Connection website. including data. willfully. servants. 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. Oracle respectfully prays for the following: A. Since at least September 2006. but not limited to: (a) Intentionally and/or negligently interfering with Oracle’s prospective economic advantage with its existing and potential customers. employees. (b) Improperly. proprietary. 158. distributing. For a preliminary and permanent injunction restraining Defendants. Oracle’s confidential. including without limitation. and that some or all of such money is rightfully due to Oracle. agents. in furtherance of their unlawful and deceptive scheme as described above. proprietary. (c) Willfully converting Oracle’s confidential. Prayer For Relief WHEREFORE. for the purpose of sabotaging Oracle’s ability to do business and compete in the market. Oracle is entitled. without authorization or consent. and. to a full accounting. 157. without Oracle’s authorization. and copyrighted Software and Support Materials. Defendants have obtained business through the use of unlawful conduct including. (2) selling. and valuable 40 COMPLAINT .
That the Court order Defendants to pay Oracle punitive damages in a sum to be determined at trial. as set forth in this Complaint. D. and valuable updates. including data. and other computer code. J. C. including data. proprietary. G. and valuable updates. (3) removing. K. I. patches. intentional interference with Oracle’s prospective economic advantage. For prejudgment interest. setting forth in detail the manner and form in which Defendants have complied with the injunction. Court deems just and proper. aiding and abetting and conspiracy. downloading or copying property from Oracle’s website without Oracle’s authorization. B. proprietary. and copyrighted Software and Support Materials. fixes. and. For an accounting. fixes. internal documents. under oath. 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 awarding Oracle such other and further relief as the . For restitution and disgorgement of all ill-gotten gains unjustly obtained and retained by Defendants through the acts complained of here. including. (4) otherwise engaging in acts of unfair competition and interference with Oracle’s business relationships. 41 COMPLAINT For damages to be proven at trial. For an Order awarding Oracle its attorneys’ fees and costs. patches. fixes. F. patches. but not limited to Oracle’s confidential. including. that Defendants took from Oracle. 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 updates. and copyrighted Software and Support Materials. and other computer code. without limitation. on the basis of their willful and deliberate unauthorized computer access. internal documents. For an Order directing Defendants to return Oracle’s property. and other computer code.
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