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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
to gain access to Oracle’s system under false pretexts. some users logged in with the user names of “xx” “ss” “User” and “NULL. Oracle to date has identified more than 10. Texas. 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. These “customer users” supplied user information (such as user name. Employing these techniques. 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.000 unauthorized downloads of Software and Support Materials relating to hundreds of different software programs. Across its entire library of Software and Support Materials in Customer Connection. one user name connected to an SAP IP address appears to have logged in using the credentials of seven different customers in a span of just 15 days – all from SAP computers in Bryan. The Bryan. Rather. 7. 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. including the ones described above. this user information did not match anything: it was fake. In many instances. combined with phony user log-in information. 8. Oracle’s server logs have recorded access through this same IP address by computers labeled with SAP identifiers using SAP IP addresses.” Others used phony email addresses like “firstname.lastname@example.org” and fake phone numbers such as “7777777777” and “123 456 7897. 9. and phone number) that did not match the customer at all. the access originated from an internet protocol (IP) address in Bryan. All of these customers whose IDs SAP appropriated had one critical fact in common: they were. SAP users effectively swept much of the contents of Oracle’s system onto SAP’s servers. In some cases. like Metro Machine Corp. Indeed. Texas. SAP blended log-in information from multiple customers with fake information.. Oracle has found many examples of similar activity. or 4 COMPLAINT .” In other cases. email address. For example. and downloaded Software and Support Materials even after the customer had dropped its support rights with Oracle.
” Another mused. SAP AG acquired SAP TN. through SAP America. called Project Fusion. increasing Oracle’s potency as a competitor to SAP AG for enterprise applications software. Oracle officially became a player on SAP’s turf. and (c) support contracts to keep the software updated and upgraded. in 2003. consulting. developers. One industry analyst stated that. 10. SAP AG spokesman Bill Wohl vowed that SAP AG would use SAP TN to “keep the pressure on 1 “JDE” refers to J. As a result of this illegal activity. As explained below. * 11. Not by coincidence. and support. aimed at taking market share from No. 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 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. * * In the world of enterprise software applications. 1 ranked SAP. and support technicians. an independent software support company founded by former PeopleSoft software engineers. a software company acquired by PeopleSoft. SAP’s own statements confirmed it. this theft appears to be an essential – and illegal – part of SAP’s competitive strategy against Oracle. Inc. (b) consulting relating to the implementation and operation of the software. Oracle had previously announced that in January 2005 it would complete its acquisition of PeopleSoft. Oracle said it has thousands of developers building the new application suite. Edwards World Solutions. “Oracle Corp. copyrighted Software and Support Materials.” 13. revenue comes from three basic activities: (a) license of the underlying software. In January 2005. SAP AG’s hasty acquisition of SAP TN was widely perceived as a response to the new competitive threat from Oracle. is developing a ‘super set’ of applications. 12. SAP apparently has now warehoused an extensive library of Oracle’s proprietary. Industry observers noted this fundamental shift in the competitive landscape. new customers of SAP TN – SAP AG’s and SAP America’s software support subsidiary whose sole purpose is to compete with Oracle. 5 COMPLAINT . “After the acquisition of PeopleSoft earlier this year.D.
Bill McDermott. SAP stole much of the Software and Support Materials directly from Oracle. Bill McDermott. · A systematic pattern of “sweeping” Oracle’s Customer Connection support website from SAP TN servers just days before. SAP TN did not appear to have the development capability to meet the support commitments advertised in the “Safe Passage” brochures at any price.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. the . committed to throw “a lot of additional resources” behind SAP TN (which consisted of only 37 employees in total).” 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.” Although SAP America President and CEO.000 illicit downloads from Customer Connection between September 2006 and January 2007. Indeed. 14. 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. industry observers deemed the “Safe Passage” program “measurably more aggressive. As reported in industry publications. SAP TN’s services “form[ed] the basis of [SAP AG’s] Safe Passage initiative. by way of example. Publicly. or the day of. a program aimed at siphoning off valuable software maintenance revenue from Oracle and persuading Oracle customers to switch software products [to SAP]. 15. SAP appeared to focus more on growing the SAP TN sales force rather than investing in or expanding SAP TN’s tiny development team.” In connection with the SAP TN acquisition. following: · More than 10. crowed “There’s nothing that I love more than to win. Nevertheless.” and a sign that “SAP has taken the gloves off. or even come close to it. much less the 50% discount promoted by SAP. It certainly did not match Oracle’s investment in development resources. SAP advertised this strategy as its “Safe Passage” program. with indications that this number may go significantly higher if traced further back in time. the 6 COMPLAINT SAP’s unlawful copying and theft includes. SAP America’s CEO.
Through its illegitimate and illegal business practices. unlawful. or in some cases on behalf of former Oracle customers with no access rights to Oracle’s Software and Support Materials whatsoever. · On multiple occasions. its many employees. These illegal business practices threaten to cause irreparable harm to Oracle. SAP has taken Oracle’s Software and Support Materials and apparently used them to insinuate itself into Oracle’s customer base.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. authorized customers or through normal access to Oracle’s Customer Connection system. · The improper access to. and its customers. Oracle has no adequate remedy at law for the harm threatened and caused by these acts. and deceptive business practices that continues to this day. 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. 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. 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. clearly-marked internal proprietary Oracle support documents not available even to licensed. expiration of a new SAP TN customer’s support contract with Oracle.” SAP has been engaged in a systematic program of unfair. and theft of. to try to “keep the pressure on Oracle. 7 COMPLAINT . In short. the indiscriminate. · Accessing and downloading Software and Support Materials across multiple product lines in multiple lines of business available on the Customer Connection support website.
Oracle USA is the successor to PeopleSoft USA. 21. SAP America is a wholly-owned subsidiary of SAP AG. 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. SAP TN is a Texas corporation with its principal place of business in Bryan. Inc. Oracle Corporation is a Delaware corporation with its principal place of business in Redwood City. Directly and through its subsidiaries. 18. Texas. The corporate relationship of the three named defendants is set forth in the chart below.. 8 COMPLAINT . with its only place of business in Redwood City. Oracle USA develops and licenses database and applications software programs and provides related services. (“PeopleSoft”) and JDE. State of California. SAP TN is a wholly-owned subsidiary of SAP America. State of California. Oracle Corporation develops and licenses database and applications software programs and provides related services around the world.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. Oracle USA is a Colorado corporation duly authorized to do business in the State of California. County of San Mateo. OIC is the owner of the copyrights at issue in this action. OIC is a California corporation duly authorized to do business in the State of California. THE PARTIES 17. County of San Mateo. 20. with its principal place of business in Redwood City. SAP America is a Delaware corporation with its principal place of SAP AG is a German corporation with its principal place of business in business in Newtown Square. Germany. State of California. County of San Mateo. 23. 19. Oracle Corporation and Oracle USA are the licensees of the copyrights at issue in this action. Walldorf. Pennsylvania.
was the agent. parent. 26. inclusive. alter ego. Defendants all are doing business in and/or have directed their activities at California.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 SAP TN.S. service. partner. SAP AG also holds an annual meeting of its Board of Directors in Palo Alto. At all material times. unincorporated association. representative. whether individual. at all material times. license. and support customers in California and in this judicial district. had full knowledge of and gave substantial 9 COMPLAINT .S. partnership. corporation. 25. Similarly. through its 100% ownership of both SAP America and SAP TN. and finances the sales and promotional activities of both SAP America and SAP TN throughout the United States and in California. Subsidiary) SAP TN (Wholly-owned U. employee. servant. affiliate. and therefore sues these defendants by such fictitious names. each of the Defendants. and specifically this judicial district. including Does 1 through 50. SAP America had both the right and authority to control the actions of SAP TN. At all material times. joint venturer. 27. 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. SAP AG had both the right and the authority to control the actions of both corporations. California. By way of example only. SAP America and SAP TN advertise. sell. subsidiary. SAP AG negotiates and enters into software license and support agreements directly within the United States and. promote. specifically in this judicial district. or otherwise. Oracle will amend this Complaint to allege their true names and capacities when ascertained. SAP AG (German Parent Corporation) SAP America (Wholly-owned U. or co-conspirator of the others. Subsidiary) Oracle is currently unaware of the true names and capacities of Does 1 through 50.
Oracle’s Software and Support Materials 32.C. § 1338. FACTUAL ALLEGATIONS A. Assignment is proper in this division under Civil L. and the Court will have subjectmatter jurisdiction over those claims pursuant to 28 U. joint venture.S. when the relevant copyright registrations issue. IV. each was acting within the scope of such agency. 17 U. and each is legally responsible for the acts and omissions of the others. Oracle’s first cause of action arises under the Computer Fraud and Abuse Act. or conspiracy. and this Court has subject-matter jurisdiction over this action pursuant to 18 U. In addition.C.S. § 1331.S. Oracle is the world’s largest enterprise software company. § 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. because a substantial part of the events giving rise to the dispute occurred in this district.C.C.C. a substantial part of the property that is the subject of the action is situated in this district. 18 U.C. representation. § 1030(g) and 28 U.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 assistance to the alleged activities. partnership. pursuant to 28 U. affiliation. 3-2 (c) and (d). INTRADISTRICT ASSIGNMENT 31.S.S. service. §§ 1030 et seq. and the Court has personal jurisdiction over each of the parties as alleged throughout this Complaint.R. employment.S. Power & Associates’ global certification for outstanding service and support based 10 COMPLAINT . § 1391.. 29.S..D. and in doing the things alleged. Venue in this district is appropriate. JURISDICTION 28. This Court has supplemental subject matter jurisdiction over the pendent state law claims under 28 U. III. VENUE 30. Oracle will seek to amend this Complaint to add claims for copyright infringement under the Copyright Act. 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. §§ 101. VI. and the first to receive J. et seq. V.
The Legal Download Agreement further restricts use of documents downloaded from the website: Permission to use Documents (such as white papers. 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.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. These terms notify the user that the software available to download from Oracle is Oracle’s copyrighted material. 42. 41. datasheets and FAQs) from this server (“Server”) is granted. users accessing specific materials. COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. (2) use of such Documents from this Server is for informational and non-commercial or personal use only and will not be copied or posted on any network computer or broadcast in any media. the user must click on a button indicating that it accepts these terms. Use for any other purpose is expressly prohibited. provided that (1) the below copyright notice appears in all copies and that both the copyright notice and this permission notice appear.” To download a SAR. Any reproduction or redistribution of the Software not in accordance with the License Agreement is expressly prohibited. press releases. 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. such as a Software Application Request (“SAR”) through the SAR Search Web Application. software action requests. 13 COMPLAINT . 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. WITHOUT LIMITING THE FOREGOING. All Software is confidential information of Oracle / PeopleSoft / JDEdwards and its use and distribution is governed by the terms of the software license agreement that is in effect between you and Oracle / PeopleSoft / JDEdwards (“License Agreement”). and (3) no modifications of any Documents are made. In addition. agree to additional legal restrictions.
he even claimed to wish Oracle “good luck” in competing with SAP AG. 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. SAP AG instead considered how to undermine Oracle. 2004 at the trial on the Department of Justice’s unsuccessful effort to block Oracle’s acquisition of PeopleSoft. Oracle Threatens To Unseat SAP 43. and geographic and product scope. Rather than improve its own products and offerings.000 people joining by Webcast and phone. Not only do many SAP AG customers use Oracle’s superior database software programs. 46. broader product line of enterprise applications software programs to compete against SAP AG. Oracle would “not [be] a competitor which could really hurt us. testified on June 23. despite not owning any of the software code for. the combination revitalized Oracle overnight as a competitor in the business software applications business. 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.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.” After the merger. 14 COMPLAINT . 45. 2005. events unfolded at a rapid pace: eleven days after its announcement.000 business applications software customers throughout the world. 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. As SAP America’s Vice President of Operations. but now Oracle offered a deeper. 44. On January 7. SAP AG CEO Henning Kagermann claimed that even with PeopleSoft. how the nearly 50. As SAP AG reeled. these same products. at its headquarters with more than 48. But SAP AG had no answer for the business proposition the new Oracle offered. size. SAP AG suddenly found itself in a far different competitive environment than the one in which it had grown comfortable. or intellectual property rights to. Richard Knowles.000-strong combined workforce of Oracle and PeopleSoft would provide unparalleled innovation and support to 23. Oracle launched the newly-united company and unveiled.
and later. and to use SAP TN to do it. SAP TN 47. Acquiring SAP TN was not a mere investment by SAP AG. 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. often outdated. in December 2004.” Aligning with SAP AG made little sense for SAP TN. because to the extent SAP AG successfully undermined Oracle by having its customers move from Oracle’s software to SAP AG’s 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. Oracle. just weeks before Oracle would close the PeopleSoft acquisition. SAP AG’s “front man for SAP AG’s mergers and acquisitions strategy.” D. So SAP AG had to make the price right. SAP AG bought “another arrow in its quiver to hunt after Oracle’s customers. it instead focuses on simply keeping the software up and running for an annual fee. In December 2004. SAP TN was a small software services company. SAP TN president Andrew Nelson got “the magic phone call” from Jim Mackey. JDE. SAP Responds To Oracle Competition With Its “Safe Passage” Scheme 48. but – with the Oracle/PeopleSoft 15 COMPLAINT . SAP TN claimed that it could cut customer maintenance and support bills in half and give customers a reprieve from software upgrade cycles by allowing customers to remain on older. As described in a glossy spread in a leading industry publication. SAP TN would eventually lose its customer base. headquartered in Bryan. Texas and founded by former PeopleSoft employees. It claimed to compete with PeopleSoft.” 49. by providing low-cost maintenance and support services to PeopleSoft and JDE customers running assorted versions of these software programs. 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. however. SAP AG proposed to buy SAP TN outright and make it a wholly-owned – and wholly-beholden – subsidiary. As one industry journalist explained. SAP AG has refused to disclose the terms of its SAP TN purchase. As one industry observer put it. but a calculated competitive move. To retain full control over every detail of its scheme to lure away customers from Oracle.” Mackey made Nelson an offer “he couldn’t refuse.
50. in connection with converting Oracle customers to SAP support (via SAP TN).” The Senior Vice President and Chief Operating Officer of SAP Asia Pacific. SAP America CEO Bill McDermott claimed “The SAP Safe Passage offering gives companies an affordable way to protect their current investments. After the acquisition. Bill McDermott. publicly vowed to bankroll this effort to undermine Oracle by putting “a lot of additional resources into TomorrowNow. 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. First. The CEOs stated the proposition more bluntly. Henning Kagermann. Andrew Nelson. 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 deal about to close – the “magic phone call” conveyed terms rich enough that. SAP AG’s CEO. publicly indicating that SAP TN was authorized and intended to implement SAP AG’s goals. SAP TN agreed to the deal and cast its lot with SAP AG. SAP TN’s new parent companies directed it to begin to implement a two-phase plan to increase SAP’s enterprise application market share. admitted that the SAP TN acquisition was “an integral part” of SAP’s Safe Passage program. stated. As SAP AG Managing Director Alan Sedghi admitted. Second. to lure the support business over.” 51. We want them to be successful.” A month later. On January 19. SAP would aggressively campaign to migrate those customers to an SAP enterprise software platform.” 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. which in turn was part of SAP’s “ongoing strategy to compete with Oracle.” And SAP TN certainly knew its role was to achieve SAP AG’s ends: as SAP TN’s CEO. SAP America’s CEO. 52. SAP would offer cut-rate pricing combined with the promise of essentially unlimited future support to former PeopleSoft and JDE support customers. ease integration with SAP NetWeaver(TM) and begin the process of innovating their businesses today. In April 2005. in barely a month. identified SAP TN as instrumental to the parent company’s “Safe Passage” program. SAP AG’s top executives unveiled SAP AG’s acquisition of SAP TN as the centerpiece of its new “Safe Passage” scheme. “We're owned by SAP. at the SAP AG annual meeting. Colin Sampson.
An April 2005 SAP AG press release apparently aimed to increase perceived doubt among Oracle customers by announcing a “second wave” of “Safe Passage. Instead.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. JD Edwards.” 54.” (emphasis supplied) SAP America’s website promises that “SAP and TomorrowNow can cut your maintenance costs by as much as 50% through 2015. If customers declined to convert to SAP TN. and Siebel customers – If Oracle’s options have you worried. To implement Phase Two of its plan (luring Oracle customers to the SAP enterprise software platform). officially “bundled” with SAP AG enterprise software as a centerpiece of the Safe Passage program. 55. SAP sales representatives unleashed a torrent of marketing materials designed to exacerbate and leverage perceived. 17 COMPLAINT . SAP provides solutions. SAP AG did not simply sit back and leave the recruiting of potential Safe Passage customers to SAP TN’s sales force. As reflected on SAP AG’s website: “SAP offers Safe Passage for PeopleSoft. SAP implemented Phase One immediately. albeit unfounded. consider another option: SAP. These lower cost alternatives advertised by SAP AG were to come directly through SAP TN. SAP AG offered maintenance support through SAP TN. PeopleSoft and JDE customer uncertainty about the prospects for long-term. Beginning in January 2005.” 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 deployed its salespeople to contact potential customers and push them to switch to SAP TN’s services.” To exploit the fear it intended to create. offering significantly lower cost maintenance alternatives to Oracle customers running PSFT/JDE solutions” through 70. quality support from Oracle. SAP AG’s “second wave” included “an intensive customer recruitment campaign. the SAP AG sales personnel would pressure the customers to drop Oracle products outright in favor of SAP AG’s suite.” and elsewhere says that “Safe Passage maintenance and support are delivered worldwide through TomorrowNow. technology and maintenance services. it took a hands-on approach.000 direct mail solicitations to Oracle customers. To give teeth to these commingled sales efforts.
However. In October 2005. technology. By March 2006. maintenance services. Bill McDermott. 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. as Oracle continued to take market share and expand its product offerings. . SAP executives touted the Safe Passage program’s limited success in its first year. SAP America President and CEO. In a July 2006 earnings call. boasted that Safe Passage “continues to do really well. investment protection and a clear road map to the next generation of business software. SAP AG’s CEO. and which it claimed “offers companies SAP solutions. companies and corporate cultures.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 boasted in a press release that more than 200 customers had signed up for Safe Passage. 58.” 57. At the same time. curiously. Henning Kagermann. the program it implemented partly through SAP TN. 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. As reported on Forbes. 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.” How SAP could offer instantaneous. “SAP AG plans to announce . round the clock Siebel code support within a few weeks of Oracle’s acquisition announcement remained a mystery.” including because SAP AG “extended the program in order to offer it as well to Siebel 18 COMPLAINT . SAP AG’s President of Customer Solutions and Operations. 2005 announcement that it would acquire Siebel Systems. and more aggressive. . By July 2006. promised SAP AG would use SAP TN and the Safe Passage program to “fight for” more customers. SAP AG continued to tout the success of Safe Passage.” but its services were expanded to support more Oracle product lines and a wider range of customers.’s own products [the Siebel products] for a far cheaper price. SAP AG CEO Henning Kagermann conceded that SAP had lost as much as 2% market share to Oracle.com after Oracle’s announcement of its impending Siebel acquisition.” SAP’s “cheaper price” (referred to elsewhere as “cut rate” support) continued at “50 cents on the dollar for maintenance fees. including through its September 12. Léo Apotheker. SAP grew more desperate.
” “fixes for serious issues. It was not clear how SAP TN could offer. 61. and in conjunction with opening new SAP TN offices around the world. Apotheker claimed that SAP now had “a global network of [SAP TN] capabilities” – enough to “gain significant traction. simply did not add up.000 software and support engineers to create and help implement the code fixes.” E. “30-minute response time. 24x7x365” on software programs for which it had no intellectual property rights. A Deal Too Good To Be True 59. even after having expanded its ranks to 150 employees. The economics. optimally functioning Oracle software. and the logic. could actually develop and offer the hundreds of regulatory updates.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. Oracle. Oracle Finds A Suspicious Pattern To analyze and improve on its industry leading support services. and purported to add full support for an entirely different product line – Siebel – with a wave of its hand. some industry analysts wondered whether a small company like SAP TN. without infringing on Oracle’s intellectual property. Oracle has now solved this puzzle. patches. bug fixes. 60. patches.” “full upgrade script support. To stave off the mounting competitive threat from Oracle. and updates that comprise the advanced support services required by Oracle’s licensed customers. maintains a development force of more than 15.” and. as it did on its website and its other materials.” By extending the Safe Passage program to Siebel customers. To compound the puzzle. SAP unlawfully accessed and copied Oracle’s Software and Support Materials. and other labor-intensive support items that a customer would need to maintain useful. most remarkably. “customized ongoing tax and regulatory updates. F. by comparison. The SAP Solution: Stolen Passage 1. Although SAP put a brave face on its ability to compete with the increasingly potent Oracle applications offerings. 62. SAP continued to offer this comprehensive support to hundreds of customers at the “cut rate” of 50 cents on the dollar. 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 .
2. Some of these apparent customer users even downloaded materials after their contractual support rights had expired. These clicks numbered in the thousands for several customers. in the month before a customer’s Oracle support expired. In late 2006. including dozens. unexplained spikes in the number of customers on the online support website who had clicked the “No. 65. And. Oracle also discovered that the downloaded Software and Support Materials included internal documents not available even to licensed customers and not available through normal. Oracle soon discovered that many of these “customers” had taken massive quantities of Software and Support Materials beyond their license rights. continue search” option. 64. 63. authorized use of Customer Connection. with the aim of continually improving the support system for 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 customer’s problem. Oracle Discovers The SAP Link Oracle embarked on a time-consuming and costly investigation to assess the damage done to its customer response database and fully understand the sources of the unauthorized downloads. to take a copy of them all. would access Oracle’s system and download large quantities of Software and Support Materials. Oracle noticed huge. continue search” option. a user purporting to be that customer. Instead. If the customer selects the “No. 20 COMPLAINT . Frequently. Indeed. 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. 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. Oracle discovered a pattern. hundreds. apparently. In the course of this investigation. or thousands of products beyond the scope of the specific customer’s licensed products and permitted access. employing the customer’s log-in credentials. Given the extreme speed at which the activity occurred. and Oracle discovered that each response – each answer by users pretending to be the customer – occurred in a matter of seconds or less. over and over again. Oracle regularly compiles this data to assess whether its system helped customers resolve their support issues.
V. including: (1) Andrew Nelson. President and CEO. SAP TN has intimate familiarity with these important restrictions and conditions relating to Oracle’s Software and Support Materials. Of SAP TN’s tenmember management team. · 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. or Oracle. (2) Bob Geib. · Not to directly or indirectly. SAP TN’s management.P. for third party use. Global J. Edwards Support. (5) Nigel Pullan. · That the Materials on the support website are confidential information subject to existing confidentiality agreements. use. (4) Mel Gadd. · That the customer username and password are for the customer’s sole use in accessing this support server. six list prior employment experience with PeopleSoft.P. V. Global PeopleSoft Support. such as Wade Walden. International Sales. and (6) Shelley Nelson.P. rent.P. formerly worked at PeopleSoft and JDE. distribute. or third party training. and a significant number of its employees. relicense. In addition. V. Quality.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70.P. or any portion thereof. (3) Laura Sweetman. V. former PeopleSoft employees who work for SAP. · Not to access the customer support system if it is not the customer’s authorized and designated Oracle technical support contact. sublicense. North American Sales. disclose. appear to have applied their familiarity with the Customer Connection website to directly participate in and perfect the illegal 22 COMPLAINT . V.D. · 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. JDE. who is reflected as the person performing many of the downloads at issue. or lease the Software or Documentation.
SAP TN reviewed and agreed to the terms and conditions on Oracle’s support website before proceeding.. § 501 and also willful and intentional 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. Ronis.A. S. Fuelserv Limited. Distribution & Auto Service. Merck & Co. NGC Management Limited. Inc. to comprehensively detail 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 support only for products that a company has licensed. Laird Plastics. 17 U. Abbott Laboratories. Inc. SAP TN’s acts violated Oracle’s exclusive rights to use. Caterpillar Elphinstone.V.S. and Yazaki North America. 75. Helzberg Diamonds. By way of example 24 COMPLAINT . Oracle’s Customer Connection website is too pervasive. 4. §§ 101 et seq. and covers too many individual violations. Such acts constitute copyright infringement under 17 U.C.C. B. and in conscious disregard of Oracle’s protected intellectual property and the integrity of its computer systems. AbitibiConsolidated.. display.. Bear. and therefore committed its theft knowingly and intentionally. Specific Examples Of SAP TN’s Unlawful Customer Downloads SAP TN’s improper access to.. Stora Enso..C. OCE Technologies. Herbert Waldman. Mortice Kern Systems. § 506. Interbrew UK. publish. and distribute these works.. With literally thousands of software programs available for licensing. create derivative works.. Accordingly. including without limitation. Honeywell International.S. Smithfield Foods. Texas Association of School Boards. Border Foods. VSM Group AB. SPX Corporation. offer for sale. 74. National Manufacturing. Grupo Costamex. Berri Limited. and taking from. reproduce. Stearns & Co. Oracle has uncovered unlicensed downloads linked to SAP TN on behalf of numerous customers. 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. Metro Machine Corp.S. and impose strict confidentiality requirements. 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.
Oracle sets forth below illustrative instances of SAP TN’s illegal conduct regarding a few of its customers. but Oracle discovered users downloading JDE products with Honeywell’s credentials.000 distinct Software and Support Materials for JDE software. Users logging into Oracle’s support system with Merck’s credentials continued to download Software and Support Materials into March 2007. 76. 2007 and nearly 400 more the next day. licenses and receives support for many Oracle software products. 2007. Then. users purporting to be “Merck” logged into the Oracle support system and downloaded over 9.000 of the Software and Support Materials taken in this period were solutions that Honeywell was not licensed to take at all.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of the nature and extent of SAP’s theft. Most of these excessive downloads came during the course of four days. This unlawful downloading even stretched across product families. In one specific library containing solutions for Enterprise One software. But. Honeywell. during which “Honeywell” was downloading almost 1800 solutions per day. Merck’s support rights for its JDE software products expired on January 1. the unauthorized downloads did not stop there.000 of these downloads related to JDE software products for which Merck had no license.000 Software and Support Materials in less than two weeks in January 2007. More than 5. Merck & Company. Honeywell International (“Honeywell”) is listed on SAP TN’s website as a client. In the three months prior to that date. 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. Oracle subsequently connected many of the illegal downloads to an SAP TN IP address and to SAP TN’s employee. Many of these “Merck” downloads came directly from an IP address in Bryan. Wade Walden – a former PeopleSoft employee now employed by SAP. 77. Honeywell used and licensed PeopleSoft software applications. 25 COMPLAINT . a user employing Honeywell’s log-in ID downloaded over 7. (“Merck”). after switching to SAP TN. it averaged just over 20 downloads of Software and Support Materials per month. one of the largest pharmaceutical companies in the world. “Honeywell” downloaded over 450 distinct unlicensed solutions on January 16. Over 2. Merck. Inc. In the approximately three and a half year period before Honeywell switched to SAP TN.
” Neither Merck nor SAP TN had any license. such as the name “user” and phone numbers such as “123 456 7897. These downloads included over 3. these illegal downloads are associated with the same IP address belonging to SAP TN in Bryan. many of these “OCE” users entered phony identification information. Texas.000 distinct Software and Support Materials. using names such as “xx” “ss” and “NULL. authorization or other right to access and download the 5. There is little chance that SAP TN intended OCE as the beneficiary of these massive sweeps. “TNL-02.000 distinct items for which OCE had no license.” This systematic sweep of products across numerous licensed and unlicensed Oracle product lines and libraries dramatically exceeded the access for which OCE (and SAP TN acting on its behalf) had any right or authority. In the months leading up to the expiration of OCE’s support rights for its Oracle products. Homebuilder Management.” In many cases. in some cases. or other right to access and download these Software and Support Materials. Canadian Payroll. OCE-Technologies B.” “9999999999. SAP TN users employed fake identification information to download the Software and Support Materials. and some were traced to a computer with SAP TN’s initials in the title. false user names) and downloaded over 12.” and phone numbers such as “4444444444” and “999 999 9999. From December of 2006 to January of 2007.” Similar to the other customer examples. authorization. since OCE does not run many of the software programs to which these downloads relate. 26 COMPLAINT . users employing OCE’s credentials downloaded a large number of Oracle products relating to US Payroll.V. 78. Like the other companies. “TN-DL03.000-plus unlicensed Software and Support Materials from Oracle.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Texas that belongs to SAP TN.” and even “xxx xxx xxxx. OCE. (“OCE”) is located in the Netherlands and appears as a customer on SAP TN’s website. and could serve no legitimate or lawful business purpose. including specifically 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. and Real Estate Management – none of which make sense coming from a European customer in support of its European business. and neither OCE nor SAP TN have any license.
These SPX downloads included over 1. originated from the same IP address belonging to SAP TN. Over 300 distinct downloads just on November 30. For the nine month period prior to October 2006. In some cases. illegally downloaded thousands of fixes and updates from Oracle’s restricted customer support website. SPX averaged approximately eleven downloads per month from Oracle’s support system.000 distinct Software and Support Materials. SAP AG and SAP America directed this 27 COMPLAINT . like the others. these users logged in using SPX credentials. “tn-wts01. Metro Machine Corp.” Many of these SPX downloads. SAP TN. SPX.000 distinct Oracle Software and Support Materials (far more than SPX could legitimately access or use). (“Metro Machine”) dropped all Oracle support effective on January 1.” 80. users purporting to represent SPX accessed and downloaded over 8.1 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. G. 2007 and switched to SAP TN. Nearly 400 of those downloads related to software programs that Metro Machine had not licensed from Oracle. 2006 were Software and Support Materials related to unlicensed Payroll software. SAP Adds The Ill-Gotten Gains To Its Coffers 81. Then. In the month before Metro Machine dropped its support rights with Oracle. but used fake identification information like the name “NULL” and phone numbers like “7777777777” and “999 999 9999. Not coincidentally. Metro Machine. between October and December 2006. 2006 and became an SAP TN customer. at SAP AG’s and SAP America’s direction. In addition.700 distinct Software and Support Materials for which SPX had no license. listed on its website. SPX Corporation (“SPX”) dropped all Oracle support on December 10. and some were traced to a computer with SAP TN’s initials in the title. SAP TN now claims to have delivered thousands of fixes and more than 800 tax and regulatory updates to Oracle’s former customers. users purporting to represent Metro Machine logged onto Oracle’s support servers and downloaded nearly 6. users logging into Oracle’s support system with Metro Machine’s credentials continued to download Software and Support Materials into March 2007. as reflected on SAP TN’s website. Oracle has traced these illegal and unauthorized downloads to the same SAP TN IP address employed for the Honeywell downloads described above.
First Claim for Relief Violation of Federal Computer Fraud and Abuse Act (18 U. current.C. information.S.C. code. § 1030(a)(2)(C). or command and as a result intentionally causing damage without authorization to a protected computer owned by Oracle.S. without authorization or by exceeding authorized access to such a computer. Defendants have violated the Computer Fraud and Abuse Act. 18 U. in addition to the irreparable harm caused by Defendants’ unfair competition. 18 U. SAP has illegally converted Oracle’s former. Using Oracle’s own protected property to unfairly compete against and undercut Oracle. accessing a protected computer. Defendants have violated the Computer Fraud and Abuse Act. without authorization or by exceeding authorized access to such a computer. 28 COMPLAINT . including but not limited to Oracle’s Software and Support Materials. Defendants have violated the Computer Fraud and Abuse Act. and by means of such conduct furthered the intended fraud and obtained one or more things of value. 85. interference with Oracle’s business relationships.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. § 1030(a)(5)(A)(i) by knowingly causing the transmission of a program. and prospective customers and the associated license and support revenue to artificially inflate its market share. by intentionally accessing a computer used for interstate commerce or communication.C. and related computer fraud.S. trespass on Oracle’s support website. and by obtaining information from such a protected computer. 83. and never disavowed it.S. § 1030(a)(4) by knowingly. 84. and with intent to defraud Oracle. 18 U. §§ 1030(a)(2)(C) & (a)(4) & a(5)) (By Oracle Against All Defendants) 82. SAP has thereby caused significant damage to Oracle through its SAP TN subsidiary. ratified it.C. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here.
Penal Code § 502 (By Oracle Against All Defendants) 90. Oracle’s remedy at law is not adequate to compensate it for these inflicted and threatened injuries. 87. Defendants have violated California Penal Code § 502(c)(3) by knowingly. and without permission. and/or computer network. in an amount well over $5000 aggregated over a one-year period. causing damage to Oracle. 88.C. Defendants have violated California Penal Code § 502(c)(2) by knowingly and fraudulently. 92. computer system.S. or assisting in providing. recklessly or without due regard for their actions. accessing. Second Claim for Relief Computer Data Access and Fraud Act .Cal. data.S. computer system. and computer systems and other losses and damage in an amount to be proved at trial. and files from Oracle’s computers. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. The computer system or systems that Defendants accessed as described above constitute a “protected computer” within the meaning of 18 U. copying.C. and making use of programs. 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 86. entitling Oracle to remedies including injunctive relief as provided by 18 U. a means of accessing Oracle’s computers. harm to Oracle’s data. and without permission accessing and using Oracle’s computer services. § 1030(g). 93. but. and without permission providing. §§ 1030(a)(5)(A)(ii) & (iii) by intentionally accessing a protected computer without authorization. § 1030(e)(2). Defendants have violated California Penal Code § 502(c)(6) by knowingly. 91. including. 18 U. without limitation. Defendants have violated the Computer Fraud and Abuse Act. in any event. programs. Defendants will continue to commit such acts.S. 89. Defendants’ unlawful access to and theft from Oracle’s computers also have caused Oracle irreparable injury. taking. fraudulently. Oracle has suffered damage and loss by reason of these violations. 29 COMPLAINT . fraudulently. Unless restrained and enjoined.C.
Had Defendants refrained from engaging in the unlawful and wrongful conduct described in this complaint. entitling Oracle to injunctive relief. 96. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. Oracle’s computers. fraudulently. there is a 30 COMPLAINT . 97. and/or computer network. 98. and due to the continuing threat of such injury. 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. and without permission accessing. or causing to be accessed. 101. Defendants have violated California Penal Code § 502(c)(7) by knowingly. These relationships contained the probability of future economic benefit in the form of profitable support service contracts and software licenses. has no adequate remedy at law. computer system. Oracle is therefore entitled to punitive damages. Third Claim for Relief Intentional Interference With Prospective Economic Advantage (By Oracle Against All Defendants) 99.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 94. Oracle is also entitled to recover its reasonable attorneys’ fees pursuant to California Penal Code § 502(e). 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 owns the data that comprises the Software and Support Materials obtained by Defendants as alleged above. 100. Defendants have caused damage to Oracle in an amount to be proven at trial. 95. Oracle has also suffered irreparable injury from these acts.
but not limited to. and violation of the Stored Communications Act. As a direct and proximate result of Defendants’ actions. and without the cost of competing fairly by independently developing the same support materials. On information and belief. 104. including.C. wire fraud. Defendants’ conduct was wrongful by a measure beyond the fact of the interference itself. loss of profits from sales or licenses to 31 COMPLAINT . the above-described relationships have been actually disrupted. §§ 270111. and used that property to obtain and retain Oracle’s current and prospective clients.S. This conduct.. as alleged above. copied Oracle’s intellectual and contractual property. Cal.C. § 1343.S. including. 18 U. Defendants gained unauthorized access to Oracle’s password-protected Customer Connection support website through false or improper credentials. but not limited to. § 1962. 18 U. fraud and related activity in connection with an access device. 103. renewed. unauthorized access to computers. These acts were undertaken by Defendants to obtain for themselves the software support contract revenue at Oracle’s expense.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. Cal. conversion. 102.C. Penal Code § 496. and conspiracy. causing certain current and prospective support clients to contract with Defendants instead of Oracle for their software support and maintenance and. 106. § 1029. Penal Code § 502. violation of RICO. in some cases. 18 U. for their enterprise software.C. 105. Oracle has suffered economic harm. 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. receipt of stolen property. § 1030 et seq. or expanded support contracts and software licenses with Oracle rather than Defendants.C. Defendants’ conduct also constitutes trespass to chattels. unjust enrichment. 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. 18 U.S.S.S. As a result of Defendants’ acts. 18 U. violation of the Federal 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. Defendants knew or should have known about the economic relationship. 108. 107. These relationships contain the probability of future economic benefit in the form of profitable support service contracts and software licenses. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. Defendants’ interference with Oracle’s prospective economic advantage with its current and future customers. 112.1 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. malicious. or expanded support contracts and software licenses with Oracle rather than Defendants. they used Oracle’s Software and Support Materials to obtain and retain for themselves software 32 COMPLAINT . 111. and in conscious disregard of Oracle’s rights. Oracle has an expectancy in continuing and advantageous economic relationships with current and prospective purchasers and licensees of Oracle’s support services and software. Fourth Claim for Relief Negligent Interference With Prospective Economic Advantage (By Oracle Against All Defendants) 109. 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. there is a substantial probability that Oracle support customers would have initiated. oppressive. Defendants failed to act with reasonable care. was willful. their actions are likely to recur and will cause Oracle irreparable injury for which there is no adequate remedy at law. Defendants’ wrongful conduct was a substantial factor in causing this harm. Had Defendants refrained from engaging in the unlawful and wrongful conduct described in this complaint. Unless Defendants are restrained by appropriate injunctive relief. renewed. Instead. described above. as described above. 110.
including.S.S. Cal. but not limited to. Defendants gained unauthorized access to Oracle’s password-protected Customer Connection support website through false or improper credentials. fraud and related activity in connection with an access device. Oracle has suffered economic harm. including. constitutes violations of numerous state and federal statutes and codes. in some cases.C. As a result of Defendants’ acts.S. § 1030 et seq. 117. 18 U. as alleged above. § 1343.1 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. Defendants’ conduct was wrongful by a measure beyond the fact of the interference itself.C. 18 U. 113. Unless Defendants are restrained by appropriate injunctive relief.S. Penal Code § 496. but not limited to.. receipt of stolen property. 114.C. and violation of the Stored Communications Act. 18 U. for their enterprise software. and conspiracy. Defendants’ wrongful conduct was a substantial factor in causing this harm. maintenance. This conduct. Penal Code § 502. the above-described relationships have been actually disrupted. causing certain current and prospective support clients to contract with Defendants instead of Oracle for their software support and maintenance and. § 1962. wire fraud. 33 COMPLAINT . 116. their actions are likely to recur and will cause Oracle irreparable injury for which there is no adequate remedy at law. violation of RICO. copied Oracle’s intellectual and contractual property.S. Cal. As a direct and proximate result of Defendants’ actions.C. unauthorized access to computers. and used that property to obtain and retain Oracle’s current and prospective clients. 115. § 1029.C. violation of the Federal Computer Fraud and Abuse Act. loss of profits from sales to current and potential customers of Oracle support. 18 U. and software products. §§ 270111. conversion. Defendants’ conduct also constitutes trespass to chattels. 18 U. unjust enrichment.
including. Defendants’ conduct constitutes violations of numerous state and federal statutes and codes. Code §§ 17200. 119. and copyrighted Software and Support Materials. violation of RICO. receipt of stolen property. all in an effort to gain unfair competitive advantage over Oracle. Penal Code § 496. conversion. negligent interference with prospective economic advantage.C. and conspiracy.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 118. trespass. and violation of the Stored Communications Act.Cal. In light of Defendants’ conduct. Defendants’ conduct also constitutes trespass to chattels. 34 COMPLAINT . 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. 18 U. unjust enrichment. Bus. interference with business relationships. wire fraud.S. §§ 1030 et seq. 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. 18 U. Defendants have improperly and unlawfully taken commercial advantage of Oracle’s investment in its confidential. Penal Code § 502. but not limited to. Fifth Claim for Relief Unfair Competition . 18 U. & Prof.C. it would be inequitable to allow Defendants to retain the benefit of the funds obtained though the unauthorized and unlawful use of Oracle’s property. 120. Defendants have engaged in unlawful business acts or practices by committing acts including computer fraud.. et seq. 18 U.C. § 1343. Cal.C.C. and unfair competition as defined by California Bus. §§ 2701-11.S.S. conversion.S. 123. intentional interference with prospective economic advantage. violation of the Computer Fraud and Abuse Act. unlawful. and other illegal acts and practices as alleged above. 122. fraud and related activity in connection with an access device. 121. § 1962. & Prof.S. proprietary. The acts and conduct of Defendants constitute fraudulent. § 1029. unauthorized access to computers. Cal.
will continue to suffer irreparable injury. Oracle has an exclusive right to possession and distribution of such property. and should be enjoined from further unlawful. As a result of such unfair competition. profits. proprietary. Oracle at no time consented. and benefits they may have obtained in violation of California Business & Professions Code § 17200 et seq. retention. Defendants should be compelled to disgorge and/or restore any and all revenues. expressly or impliedly. 130. downloading.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. unless Defendants are enjoined from such unfair competition. custody. whereby Oracle has no adequate remedy at law. Defendants’ unfair business practices have unjustly minimized Oracle’s competitive advantage and have caused and are causing Oracle to suffer damages.. 35 COMPLAINT . Instead of paying Oracle for the use of its property. which is valuable to Oracle and vital to its continued business operations. 125. Sixth Claim for Relief Conversion (By Oracle Against All Defendants) 127. all of which Oracle stored on its computer system. and all copies of such. but not limited to. earnings. 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. returning the value of the stolen property itself and any revenue earned from it. Defendants should further be ordered to return all materials taken from Oracle. This property is the sole and exclusive property of Oracle. or distribution of such property. unfair. removal. and copyrighted Software and Support Materials. compensation. Oracle has also suffered irreparable injury and. 129. including. and deceptive business practices. including. in their possession. to Defendants’ copying. Defendants intentionally and willfully entered Oracle’s password-protected Customer Connection support website without permission and took possession of Oracle’s property. 126. 128. Oracle’s confidential. or control.
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. its access-restricted internet-based support system. Allowing Defendants to retain the benefits received as a result of their wrongful acts would unjustly benefit Defendants at Oracle’s expense. Seventh Claim for Relief Trespass To Chattels (By Oracle Against All Defendants) 136. with interest. 135. or in the alternative. 137. profits from potential purchasers of Oracle support services and licensees of Oracle software products. and will continue to lose. At all times mentioned in this Complaint. In addition. Oracle is entitled to restitution of the Defendants’ ill-gotten gains. Defendants have been in knowing and unauthorized possession and control of such property since at least between September 2006 and the present. As a direct and proximate result of Defendants’ actions. and other damages in an amount to be proven at trial. and the Software and Support Materials on that support system. in an amount to be determined at trial. at the latest. 134. Oracle is entitled to damages and repossession of the converted property. or in the alternative. Oracle is entitled to an award of the value of the property taken. 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 28 131. 132. 133. Defendants’ wrongful conduct was a substantial factor in causing this harm. 36 COMPLAINT . Since that time. Oracle had legal title to and actual possession of Customer Connection. as described above. Oracle will seek its election of remedies at trial. 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. Oracle has lost. In addition.
for which Oracle’s remedy at law is not adequate to compensate it for the injuries inflicted and threatened. but not limited to. Defendants’ trespass interfered with. Defendants continue to unjustly retain these benefits at the 37 COMPLAINT . Defendants’ trespass therefore threatens to cause irreparable harm to Oracle. 143. As a result. including Defendants’ interference with Oracle’s business relationships and other unfair business practices. in an amount to be determined at trial. the integrity and functionality of Oracle’s computer system and data. and damaged. Defendants caused Oracle’s property to greatly diminish in value and deprived Oracle of the intended use of its computer systems. including. Eighth Claim for Relief Unjust Enrichment/Restitution (By Oracle Against All Defendants) 142. 139. 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. 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 unjustly received benefits at the expense of Oracle through their wrongful conduct. 140. as well as Defendants’ trespass on. Defendants’ trespass and interference proximately caused damage to Oracle. Oracle is entitled to recover any and all damages it sustained as a result of such trespass. and damage to the confidential and copyrighted nature of the information on Oracle’s website. Defendants intentionally interfered with Oracle’s use or possession of both Customer Connection and Oracle’s related internal databases and systems. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. and the Software and Support Materials housed for licensed access through Customer Connection. computer fraud concerning. which took substantial time and money for Oracle to develop. damage to the functionality of Oracle’s computer system and data. damage to Oracle’s rights to dominion and control over its property. Defendants will continue to commit such acts and other competitors will be encouraged to sweep Oracle’s website. 141.
As a direct and proximate result of the acts in furtherance of the conspiracy. intentionally. Oracle is accordingly entitled to full restitution of all amounts in which Defendants have been unjustly enriched at Oracle’s expense. The wrongful conduct committed pursuant to the conspiracy was a substantial factor in causing this harm. Oracle has suffered injury. It would be unjust for Defendants to retain any value they obtained as a result of their wrongful conduct. loss. and commission of. 149. 38 COMPLAINT . Defendants willfully. Ninth Claim for Relief Civil Conspiracy (By Oracle Against All Defendants) 145. including Defendants’ interference with Oracle’s business relationships and other unfair business practices. and harm. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. and knowingly agreed and conspired with each other to engage in the alleged wrongful conduct. but not limited to. 146. oppressive. 144. Defendants’ intentional agreement to commit. that agreement and/or furthered the conspiracy by cooperating. loss of profits from sales to current and potential customers of Oracle support services and licenses for Oracle’s software programs. Defendants did the acts alleged pursuant to. including. ratifying. and in furtherance of. or adopting the acts of the others. malicious. 148.1 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. computer fraud concerning. encouraging. 147. damage. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. and in conscious disregard of Oracle’s rights. and conversion of the Software and Support Materials. these wrongful acts was willful. as well as Defendants’ trespass on.
Defendants also aided and abetted the described wrongful conduct of the other Defendants by giving substantial assistance and/or encouragement that. and in conscious disregard of Oracle’s rights. 152. Oracle has suffered injury. 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. 39 COMPLAINT . separately considered. As fully described above. 154. and aided and abetted such wrongful conduct. and harm. by providing substantial assistance and/or encouraging the others to act. loss of profits from sales to current and potential customers of Oracle support services and licenses to Oracle software programs. was wrongful in and of itself. The wrongful conduct aided and abetted by the Defendants was a substantial factor in causing this harm.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 155. malicious. 151. and conversion of the Software and Support Materials. Defendants had full knowledge or should have reasonably known of the true nature of the wrongful conduct of each other Defendant. oppressive. 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. As a direct and proximate result of the aiding and abetting of these acts. 150. damage. but not limited to. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. including interference with Oracle’s business relationships and other unfair business practices. including. computer fraud concerning. as well as Defendants’ trespass on. loss. Defendants’ aiding and abetting of these wrongful acts was willful.
(d) Fraudulently accessing and intentionally trespassing on Oracle’s password-protected Customer Connection website. proprietary. Oracle’s confidential. for the purpose of sabotaging Oracle’s ability to do business and compete in the market. including data. Prayer For Relief WHEREFORE. Oracle is entitled. For a preliminary and permanent injunction restraining Defendants. their officers. 157. distributing. without Oracle’s authorization. to a full accounting. at Oracle’s expense. Since at least September 2006. proprietary. including without limitation the Customer Connection website. servants. including without limitation. agents.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. 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. willfully. and unlawfully taking commercial advantage of Oracle’s investment in its Software and Support Materials. (2) selling. Defendants have obtained business through the use of unlawful conduct including. employees. without authorization or consent. (b) Improperly. in furtherance of their unlawful and deceptive scheme as described above. 158. Defendants have received money as a result of their misconduct. but not limited to: (a) Intentionally and/or negligently interfering with Oracle’s prospective economic advantage with its existing and potential customers. and copyrighted Software and Support Materials. and. and that some or all of such money is rightfully due to Oracle. or using any property obtained from Oracle’s website. Oracle respectfully prays for the following: A. (c) Willfully converting Oracle’s confidential. and copyrighted Software and Support Materials. internal documents. and attorneys. and those in active concert or participation with any of them from: (1) accessing any Oracle restricted-access or customer website. and valuable 40 COMPLAINT . therefore.
intentional interference with Oracle’s prospective economic advantage. and copyrighted Software and Support Materials. on the basis of their willful and deliberate unauthorized computer access. (4) otherwise engaging in acts of unfair competition and interference with Oracle’s business relationships. C. under oath. G. For an Order awarding Oracle its attorneys’ fees and costs. J. 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. patches. as set forth in this Complaint. including data. F. and other computer code. setting forth in detail the manner and form in which Defendants have complied with the injunction. B. downloading or copying property from Oracle’s website without Oracle’s authorization. K. and other computer code. and valuable updates. (3) removing. 41 COMPLAINT For damages to be proven at trial. and valuable updates. patches. fixes. For an Order awarding Oracle such other and further relief as the . and. proprietary. For prejudgment interest. H.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. fixes. patches. internal documents. Court deems just and proper. D. but not limited to Oracle’s confidential. including. That the Court order Defendants to pay Oracle punitive damages in a sum to be determined at trial. including. Oracle’s confidential. that Defendants took from Oracle. I. without limitation. and other computer code. For an Order directing Defendants to return Oracle’s property. internal documents. For an accounting. proprietary. For restitution and disgorgement of all ill-gotten gains unjustly obtained and retained by Defendants through the acts complained of here. fixes. and copyrighted Software and Support Materials. aiding and abetting and conspiracy. including data.
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