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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
com” and fake phone numbers such as “7777777777” and “123 456 7897.” Others used phony email addresses like “test@testyomama. This systematic theft of Oracle’s Software and Support Materials did not originate from any actual customer location. SAP users effectively swept much of the contents of Oracle’s system onto SAP’s servers.000 unauthorized downloads of Software and Support Materials relating to hundreds of different software programs. Indeed. and phone number) that did not match the customer at all. Oracle’s server logs have recorded access through this same IP address by computers labeled with SAP identifiers using SAP IP addresses. These “customer users” supplied user information (such as user name. this user information did not match anything: it was fake. like Metro Machine Corp. 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. 8. Oracle has found many examples of similar activity. Oracle to date has identified more than 10. SAP employees used the log-in IDs of multiple customers. 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. Texas. SAP TN is a company that purports to provide technical support services on certain versions of Oracle’s PeopleSoft and JDE software programs. to gain access to Oracle’s system under false pretexts. an SAP America branch office location and home of its wholly-owned subsidiary SAP TN. email address. In many instances.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. SAP blended log-in information from multiple customers with fake information. including the ones described above. 7. Across its entire library of Software and Support Materials in Customer Connection. The Bryan. Employing these techniques. 9. Texas.. In some cases. Rather. some users logged in with the user names of “xx” “ss” “User” and “NULL.” In other cases. combined with phony user log-in information. or 4 COMPLAINT . For example. For example. 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.
“After the acquisition of PeopleSoft earlier this year. Oracle officially became a player on SAP’s turf. this theft appears to be an essential – and illegal – part of SAP’s competitive strategy against Oracle. Not by coincidence. and (c) support contracts to keep the software updated and upgraded. * 11. (b) consulting relating to the implementation and operation of the software. One industry analyst stated that. an independent software support company founded by former PeopleSoft software engineers. through SAP America. SAP’s own statements confirmed it. Edwards World Solutions.” 13. Oracle had previously announced that in January 2005 it would complete its acquisition of PeopleSoft. 5 COMPLAINT .” Another mused. 1 ranked SAP. revenue comes from three basic activities: (a) license of the underlying software. in 2003. aimed at taking market share from No. SAP AG spokesman Bill Wohl vowed that SAP AG would use SAP TN to “keep the pressure on 1 “JDE” refers to J. increasing Oracle’s potency as a competitor to SAP AG for enterprise applications software. consulting. 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. a software company acquired by PeopleSoft. called Project Fusion. As explained below. and support. In January 2005.D. Industry observers noted this fundamental shift in the competitive landscape. “Oracle Corp. Oracle said it has thousands of developers building the new application suite.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. developers. and support technicians. SAP apparently has now warehoused an extensive library of Oracle’s proprietary. 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. Inc. As a result of this illegal activity. 12. copyrighted Software and Support Materials. 10. SAP AG acquired SAP TN. new customers of SAP TN – SAP AG’s and SAP America’s software support subsidiary whose sole purpose is to compete with Oracle. * * In the world of enterprise software applications.
with indications that this number may go significantly higher if traced further back in time. SAP TN’s services “form[ed] the basis of [SAP AG’s] Safe Passage initiative. following: · More than 10. industry observers deemed the “Safe Passage” program “measurably more aggressive. Bill McDermott. much less the 50% discount promoted by SAP. · A systematic pattern of “sweeping” Oracle’s Customer Connection support website from SAP TN servers just days before. by way of example. SAP appeared to focus more on growing the SAP TN sales force rather than investing in or expanding SAP TN’s tiny development team. crowed “There’s nothing that I love more than to win. a program aimed at siphoning off valuable software maintenance revenue from Oracle and persuading Oracle customers to switch software products [to SAP].000 illicit downloads from Customer Connection between September 2006 and January 2007. SAP TN did not appear to have the development capability to meet the support commitments advertised in the “Safe Passage” brochures at any price. Publicly.” In connection with the SAP TN acquisition. the 6 COMPLAINT SAP’s unlawful copying and theft includes. 15. committed to throw “a lot of additional resources” behind SAP TN (which consisted of only 37 employees in total). Nevertheless. SAP advertised this strategy as its “Safe Passage” program. 14. SAP stole much of the Software and Support Materials directly from Oracle. or the day of. or even come close to it.” Although SAP America President and CEO. Indeed. SAP America’s CEO.” and a sign that “SAP has taken the gloves off.” 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. It certainly did not match Oracle’s investment in development resources. Bill McDermott. 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. As reported in industry publications.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. explicitly designed to transition customers away from Oracle products and onto the SAP software platform. the .
authorized customers or through normal access to Oracle’s Customer Connection system. Through its illegitimate and illegal business practices. These illegal business practices threaten to cause irreparable harm to Oracle. and to attempt to convert these customers to SAP software applications. unlawful. Oracle has no adequate remedy at law for the harm threatened and caused by these acts. 7 COMPLAINT . clearly-marked internal proprietary Oracle support documents not available even to licensed. its many employees. 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. · Accessing and downloading Software and Support Materials across multiple product lines in multiple lines of business available on the Customer Connection support website. the indiscriminate. or in some cases on behalf of former Oracle customers with no access rights to Oracle’s Software and Support Materials whatsoever.” SAP has been engaged in a systematic program of unfair. and deceptive business practices that continues to this day. in the purported name of customers that had never licensed those products and had no legal access to them. Oracle 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.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. expiration of a new SAP TN customer’s support contract with Oracle. · The improper access to. to try to “keep the pressure on Oracle. SAP has taken Oracle’s Software and Support Materials and apparently used them to insinuate itself into Oracle’s customer base. and theft of. and its customers. In short. · On multiple occasions.
County of San Mateo. 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 wholly-owned subsidiary of SAP America. 21. 23. Walldorf. Oracle Corporation and Oracle USA are the licensees of the copyrights at issue in this action. 19. THE PARTIES 17. Oracle USA is a Colorado corporation duly authorized to do business in the State of California. 20. 8 COMPLAINT . State of California. OIC is the owner of the copyrights at issue in this action. Oracle Corporation develops and licenses database and applications software programs and provides related services around the world. County of San Mateo.. County of San Mateo. State of California. State of California. The corporate relationship of the three named defendants is set forth in the chart below. Pennsylvania. Texas. 18. OIC is a California corporation duly authorized to do business in the State of California. SAP TN is a Texas corporation with its principal place of business in Bryan. Oracle Corporation is a Delaware corporation with its principal place of business in Redwood City. with its only place of business in Redwood City. Germany. SAP America is a Delaware corporation with its principal place of SAP AG is a German corporation with its principal place of business in business in Newtown Square. Inc. Oracle USA is the successor to PeopleSoft USA. SAP America is a wholly-owned subsidiary of SAP AG. Oracle USA develops and licenses database and applications software programs and provides related services. with its principal place of business in Redwood City. Directly and through its subsidiaries. (“PeopleSoft”) and JDE. 22.1 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.
S. joint venturer. and specifically this judicial district. was the agent. employee. license. at all material times.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. unincorporated association. SAP America had both the right and authority to control the actions of SAP TN. corporation. Oracle will amend this Complaint to allege their true names and capacities when ascertained. through its 100% ownership of SAP TN. 27. or otherwise. partnership. Similarly. Subsidiary) Oracle is currently unaware of the true names and capacities of Does 1 through 50. At all material times. partner. Subsidiary) SAP TN (Wholly-owned U.S. promote. parent. 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. each of the Defendants. whether individual. SAP AG negotiates and enters into software license and support agreements directly within the United States and. alter ego. through its 100% ownership of both SAP America and SAP TN. California. 25. or co-conspirator of the others. affiliate. inclusive. representative. sell. service. SAP AG had both the right and the authority to control the actions of both corporations. had full knowledge of and gave substantial 9 COMPLAINT . Defendants all are doing business in and/or have directed their activities at California. At all material times. including Does 1 through 50. By way of example only. subsidiary. SAP AG (German Parent Corporation) SAP America (Wholly-owned U. 26. servant. and finances the sales and promotional activities of both SAP America and SAP TN throughout the United States and in California. SAP America and SAP TN advertise. and support customers in California and in this judicial district. and therefore sues these defendants by such fictitious names. SAP AG also holds an annual meeting of its Board of Directors in Palo Alto.
18 U. 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. VENUE 30. § 1338. JURISDICTION 28. and the Court has personal jurisdiction over each of the parties as alleged throughout this Complaint. representation.S.C.. a substantial part of the property that is the subject of the action is situated in this district. employment.C. IV. Oracle is the world’s largest enterprise software company.C. III. 17 U. This Court has supplemental subject matter jurisdiction over the pendent state law claims under 28 U. § 1367 because these claims are so related to Oracle’s claims under federal law that they form part of the same case or controversy and derive from a common nucleus of operative facts. § 1391.R.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. Assignment is proper in this division under Civil L. §§ 1030 et seq. and this Court has subject-matter jurisdiction over this action pursuant to 18 U. et seq. Oracle’s first cause of action arises under the Computer Fraud and Abuse Act.C. 3-2 (c) and (d).S. and each is legally responsible for the acts and omissions of the others. pursuant to 28 U.S. or conspiracy. V.S. when the relevant copyright registrations issue. affiliation. Oracle will seek to amend this Complaint to add claims for copyright infringement under the Copyright Act.C. and the Court will have subjectmatter jurisdiction over those claims pursuant to 28 U. § 1331. service. In addition. because a substantial part of the events giving rise to the dispute occurred in this district. VI. each was acting within the scope of such agency.C. Oracle’s Software and Support Materials 32. and in doing the things alleged. and the first to receive J.S.S. § 1030(g) and 28 U. 29. FACTUAL ALLEGATIONS A. Power & Associates’ global certification for outstanding service and support based 10 COMPLAINT . partnership.C.S.. §§ 101.D. INTRADISTRICT ASSIGNMENT 31. joint venture. Venue in this district is appropriate.
provided that (1) the below copyright notice appears in all copies and that both the copyright notice and this permission notice appear. 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”).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. 13 COMPLAINT . WITHOUT LIMITING THE FOREGOING. In addition. press releases.” To download a SAR. such as a Software Application Request (“SAR”) through the SAR Search Web Application. Any reproduction or redistribution of the Software not in accordance with the License Agreement is expressly prohibited. and (3) no modifications of any Documents are made. datasheets and FAQs) from this server (“Server”) is granted. agree to additional legal restrictions. (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. 41. 42. users accessing specific materials. the user must click on a button indicating that it accepts these terms. 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. COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. The Legal Download Agreement further restricts use of documents downloaded from the website: Permission to use Documents (such as white papers. Use for any other purpose is expressly prohibited. software action requests. product or upgrade announcements. 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. These terms notify the user that the software available to download from Oracle is Oracle’s copyrighted material. 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.
” After the merger. Richard Knowles. testified on June 23. 46. 45. events unfolded at a rapid pace: eleven days after its announcement. 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. 44. 2005. or intellectual property rights to. 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. 2004 at the trial on the Department of Justice’s unsuccessful effort to block Oracle’s acquisition of PeopleSoft. As SAP America’s Vice President of Operations. 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. despite not owning any of the software code for. but now Oracle offered a deeper. Not only do many SAP AG customers use Oracle’s superior database software programs. how the nearly 50.000 business applications software customers throughout the world. these same products. 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. On January 7. he even claimed to wish Oracle “good luck” in competing with SAP AG. 14 COMPLAINT . As SAP AG reeled. SAP AG suddenly found itself in a far different competitive environment than the one in which it had grown comfortable. the combination revitalized Oracle overnight as a competitor in the business software applications business. SAP AG CEO Henning Kagermann claimed that even with PeopleSoft. at its headquarters with more than 48.1 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. and geographic and product scope. Rather than improve its own products and offerings.000 people joining by Webcast and phone. 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. broader product line of enterprise applications software programs to compete against SAP AG. size. Oracle launched the newly-united company and unveiled.
but – with the Oracle/PeopleSoft 15 COMPLAINT . SAP TN was a small software services company. in December 2004. 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. JDE. As one industry journalist explained.” Aligning with SAP AG made little sense for SAP TN. Oracle. SAP AG proposed to buy SAP TN outright and make it a wholly-owned – and wholly-beholden – subsidiary. 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. To retain full control over every detail of its scheme to lure away customers from Oracle. often outdated. 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. because to the extent SAP AG successfully undermined Oracle by having its customers move from Oracle’s software to SAP AG’s software. As described in a glossy spread in a leading industry publication. and later. SAP TN 47. but a calculated competitive move. Acquiring SAP TN was not a mere investment by SAP AG. Texas and founded by former PeopleSoft employees.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 president Andrew Nelson got “the magic phone call” from Jim Mackey. 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. It claimed to compete with PeopleSoft.” 49. and to use SAP TN to do it. SAP AG has refused to disclose the terms of its SAP TN purchase. however.” Mackey made Nelson an offer “he couldn’t refuse. SAP Responds To Oracle Competition With Its “Safe Passage” Scheme 48. just weeks before Oracle would close the PeopleSoft acquisition. SAP TN would eventually lose its customer base.” D. So SAP AG had to make the price right. In December 2004. As one industry observer put it. 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. headquartered in Bryan.
” 51. Colin Sampson. identified SAP TN as instrumental to the parent company’s “Safe Passage” program. stated. SAP TN agreed to the deal and cast its lot with SAP AG. admitted that the SAP TN acquisition was “an integral part” of SAP’s Safe Passage program. 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. SAP AG’s top executives unveiled SAP AG’s acquisition of SAP TN as the centerpiece of its new “Safe Passage” scheme. to lure the support business over. First. SAP America CEO Bill McDermott claimed “The SAP Safe Passage offering gives companies an affordable way to protect their current investments. SAP AG would try to use SAP TN as a means of “speeding-up” the migration of PeopleSoft and JDE users to SAP platforms. As SAP AG Managing Director Alan Sedghi admitted.” A month later. 2005. SAP TN’s new parent companies directed it to begin to implement a two-phase plan to increase SAP’s enterprise application market share. SAP America’s CEO. SAP AG’s CEO. The CEOs stated the proposition more bluntly. in connection with converting Oracle customers to SAP support (via SAP TN). On January 19. After the acquisition. Bill McDermott. which in turn was part of SAP’s “ongoing strategy to compete with Oracle. We want them to be successful. Henning Kagermann. publicly indicating that SAP TN was authorized and intended to implement SAP AG’s goals. publicly vowed to bankroll this effort to undermine Oracle by putting “a lot of additional resources into TomorrowNow. “We're owned by SAP. ease integration with SAP NetWeaver(TM) and begin the process of innovating their businesses today. 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.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 would offer cut-rate pricing combined with the promise of essentially unlimited future support to former PeopleSoft and JDE support customers. 50. Second. 52. Andrew Nelson. at the SAP AG annual meeting.” 16 COMPLAINT . in barely a month.” And SAP TN certainly knew its role was to achieve SAP AG’s ends: as SAP TN’s CEO. In April 2005.
” and elsewhere says that “Safe Passage maintenance and support are delivered worldwide through TomorrowNow. offering significantly lower cost maintenance alternatives to Oracle customers running PSFT/JDE solutions” through 70. These lower cost alternatives advertised by SAP AG were to come directly through SAP TN. To implement Phase Two of its plan (luring Oracle customers to the SAP enterprise software platform). SAP sales representatives unleashed a torrent of marketing materials designed to exacerbate and leverage perceived. If customers declined to convert to SAP TN. To give teeth to these commingled sales efforts. PeopleSoft and JDE customer uncertainty about the prospects for long-term. An April 2005 SAP AG press release apparently aimed to increase perceived doubt among Oracle customers by announcing a “second wave” of “Safe Passage.” 54. SAP AG did not simply sit back and leave the recruiting of potential Safe Passage customers to SAP TN’s sales force. Instead. SAP implemented Phase One immediately. Beginning in January 2005. As reflected on SAP AG’s website: “SAP offers Safe Passage for PeopleSoft.” 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.” To exploit the fear it intended to create. JD Edwards. officially “bundled” with SAP AG enterprise software as a centerpiece of the Safe Passage program. SAP AG’s “second wave” included “an intensive customer recruitment campaign. consider another option: SAP. 17 COMPLAINT . SAP AG offered maintenance support 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 53.000 direct mail solicitations to Oracle customers.” (emphasis supplied) SAP America’s website promises that “SAP and TomorrowNow can cut your maintenance costs by as much as 50% through 2015. 55. quality support from Oracle. it took a hands-on approach. It deployed its salespeople to contact potential customers and push them to switch to SAP TN’s services. albeit unfounded. SAP provides solutions. the SAP AG sales personnel would pressure the customers to drop Oracle products outright in favor of SAP AG’s suite. technology and maintenance services. and Siebel customers – If Oracle’s options have you worried.
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. Léo Apotheker. By July 2006. the program it implemented partly through SAP TN.” How SAP could offer instantaneous. Henning Kagermann. that it will offer technical support for more of rival software maker Oracle Corp. companies and corporate cultures. SAP AG’s President of Customer Solutions and Operations. . and more aggressive. 58. SAP AG continued to tout the success of Safe Passage. SAP announced it would extend its Safe Passage program to Siebel customers. maintenance services. SAP America President and CEO. 2005 announcement that it would acquire Siebel Systems.” but its services were expanded to support more Oracle product lines and a wider range of customers. and which it claimed “offers companies SAP solutions. In a July 2006 earnings call. investment protection and a clear road map to the next generation of business software.” including because SAP AG “extended the program in order to offer it as well to Siebel 18 COMPLAINT . SAP AG boasted in a press release that more than 200 customers had signed up for Safe Passage. SAP AG CEO Henning Kagermann conceded that SAP had lost as much as 2% market share to Oracle. . curiously. In October 2005.” SAP’s “cheaper price” (referred to elsewhere as “cut rate” support) continued at “50 cents on the dollar for maintenance fees.” 57. Bill McDermott. technology. As reported on Forbes.com after Oracle’s announcement of its impending Siebel acquisition. By March 2006. round the clock Siebel code support within a few weeks of Oracle’s acquisition announcement remained a mystery.’s own products [the Siebel products] for a far cheaper price. SAP AG’s CEO. promised SAP AG would use SAP TN and the Safe Passage program to “fight for” more customers. SAP executives touted the Safe Passage program’s limited success in its first year. boasted that Safe Passage “continues to do really well.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. However. 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. SAP grew more desperate. At the same time. including through its September 12. as Oracle continued to take market share and expand its product offerings. “SAP AG plans to announce .
62. 24x7x365” on software programs for which it had no intellectual property rights. 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 . The economics. To stave off the mounting competitive threat from Oracle.” By extending the Safe Passage program to Siebel customers. To compound the puzzle. and in conjunction with opening new SAP TN offices around the world. even after having expanded its ranks to 150 employees. and purported to add full support for an entirely different product line – Siebel – with a wave of its hand. maintains a development force of more than 15. “30-minute response time. as it did on its website and its other materials. some industry analysts wondered whether a small company like SAP TN. Oracle Finds A Suspicious Pattern To analyze and improve on its industry leading support services.” “full upgrade script support. SAP unlawfully accessed and copied Oracle’s Software and Support Materials. Oracle. bug fixes. F. A Deal Too Good To Be True 59. most remarkably. optimally functioning Oracle software. without infringing on Oracle’s intellectual property. Although SAP put a brave face on its ability to compete with the increasingly potent Oracle applications offerings. patches. patches. and the logic. simply did not add up.” E. Apotheker claimed that SAP now had “a global network of [SAP TN] capabilities” – enough to “gain significant traction. 61. and other labor-intensive support items that a customer would need to maintain useful. and updates that comprise the advanced support services required by Oracle’s licensed customers. “customized ongoing tax and regulatory updates. could actually develop and offer the hundreds of regulatory updates. It was not clear how SAP TN could offer. The SAP Solution: Stolen Passage 1. 60. SAP continued to offer this comprehensive support to hundreds of customers at the “cut rate” of 50 cents on the dollar.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. by comparison.” and. Oracle has now solved this puzzle.” “fixes for serious issues.000 software and support engineers to create and help implement the code fixes.
63. 65. hundreds. employing the customer’s log-in credentials. apparently. Oracle soon discovered that many of these “customers” had taken massive quantities of Software and Support Materials beyond their license rights. to take a copy of them all. Instead. would access Oracle’s system and download large quantities of Software and Support Materials. these clicks could not reflect real responses from any human customers actually reading the solutions they had accessed. These clicks numbered in the thousands for several customers. 2. over and over again. a user purporting to be that customer. 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. If the customer selects the “No. continue search” option.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. in the month before a customer’s Oracle support expired. Oracle regularly compiles this data to assess whether its system helped customers resolve their support issues. with the aim of continually improving the support system for customers. Some of these apparent customer users even downloaded materials after their contractual support rights had expired. and Oracle discovered that each response – each answer by users pretending to be the customer – occurred in a matter of seconds or less. 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. unexplained spikes in the number of customers on the online support website who had clicked the “No. In late 2006. authorized use of Customer Connection. Indeed. Oracle discovered a pattern. 64. Oracle also discovered that the downloaded Software and Support Materials included internal documents not available even to licensed customers and not available through normal. 20 COMPLAINT . the support system responds by offering the customer further options. In the course of this investigation. Oracle noticed huge. Given the extreme speed at which the activity occurred. And. Frequently. continue search” option. or thousands of products beyond the scope of the specific customer’s licensed products and permitted access. including dozens.
Of SAP TN’s tenmember management team.P. relicense.P.P. or Oracle. or any portion thereof. and a significant number of its employees. · That the Materials on the support website are confidential information subject to existing confidentiality agreements. President and CEO. SAP TN’s management. sublicense. · Not to directly or indirectly. use. or lease the Software or Documentation. Global PeopleSoft Support. V. or third party training. V.P. In addition. (2) Bob Geib. · 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. distribute. appear to have applied their familiarity with the Customer Connection website to directly participate in and perfect the illegal 22 COMPLAINT . North American Sales. and (6) Shelley Nelson. SAP TN has intimate familiarity with these important restrictions and conditions relating to Oracle’s Software and Support Materials. V. disclose. V. six list prior employment experience with PeopleSoft. who is reflected as the person performing many of the downloads at issue.P. Global J. including: (1) Andrew Nelson. for third party use. · Not to access the customer support system if it is not the customer’s authorized and designated Oracle technical support contact.D. · That the customer username and password are for the customer’s sole use in accessing this support server. JDE. (5) Nigel Pullan. formerly worked at PeopleSoft and JDE. rent. International Sales. (3) Laura Sweetman.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70. V. · That the customer username and password may only be distributed to persons in the customer’s organization who have a legitimate business purpose for accessing the materials contained on the support server in furtherance of the customer’s relationship with Oracle. such as Wade Walden. Edwards Support. (4) Mel Gadd. Quality. former PeopleSoft employees who work for SAP.
§ 501 and also willful and intentional copyright infringement under 17 U.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. Caterpillar Elphinstone.. Stearns & Co. SAP TN reviewed and agreed to the terms and conditions on Oracle’s support website before proceeding. Merck & Co. create derivative works. Grupo Costamex. 4. Herbert Waldman.. Such acts constitute copyright infringement under 17 U. Metro Machine Corp. 74. Abbott Laboratories. and covers too many individual violations. 75. 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. and therefore committed its theft knowingly and intentionally. publish. Helzberg Diamonds.. Oracle’s Customer Connection website is too pervasive. By way of example 24 COMPLAINT . display. Ronis. VSM Group AB. § 506. Fuelserv Limited.S. to comprehensively detail here. With literally thousands of software programs available for licensing. National Manufacturing. Inc. Border Foods. Interbrew UK. NGC Management Limited.C. Oracle has uncovered unlicensed downloads linked to SAP TN on behalf of numerous customers. and in conscious disregard of Oracle’s protected intellectual property and the integrity of its computer systems. Texas Association of School Boards. §§ 101 et seq. Laird Plastics. Inc.C. 17 U. S. Smithfield Foods. and Yazaki North America. Berri Limited. 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.V. including without limitation. OCE Technologies.S.. AbitibiConsolidated.A.. 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. Mortice Kern Systems. Honeywell International. Stora Enso. B.. reproduce.S. Accordingly.C. Distribution & Auto Service. Bear. Specific Examples Of SAP TN’s Unlawful Customer Downloads SAP TN’s improper access to. SPX Corporation.. and impose strict confidentiality requirements. and taking from. and distribute these works. SAP TN’s acts violated Oracle’s exclusive rights to use. offer for sale.
77. (“Merck”). during which “Honeywell” was downloading almost 1800 solutions per day. Many of these “Merck” downloads came directly from an IP address in Bryan. This unlawful downloading even stretched across product families. Wade Walden – a former PeopleSoft employee now employed by SAP. Then.000 Software and Support Materials in less than two weeks in January 2007.000 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. 25 COMPLAINT .000 of the Software and Support Materials taken in this period were solutions that Honeywell was not licensed to take at all. But. Honeywell International (“Honeywell”) is listed on SAP TN’s website as a client. Over 2. after switching to SAP TN. “Honeywell” downloaded over 450 distinct unlicensed solutions on January 16. 2007. Inc. 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. Merck. but Oracle discovered users downloading JDE products with Honeywell’s credentials. the unauthorized downloads did not stop there. Oracle sets forth below illustrative instances of SAP TN’s illegal conduct regarding a few of its customers. 76. In one specific library containing solutions for Enterprise One software. Merck & Company. Most of these excessive downloads came during the course of four days. it averaged just over 20 downloads of Software and Support Materials per month.000 of these downloads related to JDE software products for which Merck had no license. Merck’s support rights for its JDE software products expired on January 1.1 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. Oracle subsequently connected many of the illegal downloads to an SAP TN IP address and to SAP TN’s employee. one of the largest pharmaceutical companies in the world. users purporting to be “Merck” logged into the Oracle support system and downloaded over 9. In the approximately three and a half year period before Honeywell switched to SAP TN. In the three months prior to that date. More than 5. Honeywell. 2007 and nearly 400 more the next day. licenses and receives support for many Oracle software products. Honeywell used and licensed PeopleSoft software applications. a user employing Honeywell’s log-in ID downloaded over 7.
or other right to access and download these Software and Support Materials. in some cases. and some were traced to a computer with SAP TN’s initials in the title.” This systematic sweep of products across numerous licensed and unlicensed Oracle product lines and libraries dramatically exceeded the access for which OCE (and SAP TN acting on its behalf) had any right or authority.” Similar to the other customer examples. 78.000 distinct items for which OCE had no license. users employing OCE’s credentials downloaded a large number of Oracle products relating to US Payroll.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. OCE-Technologies B. authorization or other right to access and download the 5.” and even “xxx xxx xxxx. false user names) and downloaded over 12. such as the name “user” and phone numbers such as “123 456 7897. and Real Estate Management – none of which make sense coming from a European customer in support of its European business. Canadian Payroll. In the months leading up to the expiration of OCE’s support rights for its Oracle products. and neither OCE nor SAP TN have any license. (“OCE”) is located in the Netherlands and appears as a customer on SAP TN’s website. From December of 2006 to January of 2007. using names such as “xx” “ss” and “NULL.000-plus unlicensed Software and Support Materials from Oracle. Texas.” Neither Merck nor SAP TN had any license. and could serve no legitimate or lawful business purpose.V. “TNL-02.” “9999999999. “TN-DL03. Homebuilder Management. There is little chance that SAP TN intended OCE as the beneficiary of these massive sweeps. 26 COMPLAINT .” and phone numbers such as “4444444444” and “999 999 9999. OCE. SAP TN users logged into Oracle’s support system using OCE’s credentials (and. since OCE does not run many of the software programs to which these downloads relate.000 distinct Software and Support Materials.” In many cases. these illegal downloads are associated with the same IP address belonging to SAP TN in Bryan. These downloads included over 3. Like the other companies. including specifically to a computer with SAP TN’s initials in the title. many of these “OCE” users entered phony identification information. authorization. SAP TN users employed fake identification information to download the Software and Support Materials.
users purporting to represent Metro Machine logged onto Oracle’s support servers and downloaded nearly 6. 2006 and became an SAP TN customer. For the nine month period prior to October 2006. originated from the same IP address belonging to SAP TN. SAP AG and SAP America directed this 27 COMPLAINT .700 distinct Software and Support Materials for which SPX had no license.” Many of these SPX downloads. as reflected on SAP TN’s website. illegally downloaded thousands of fixes and updates from Oracle’s restricted customer support website. SAP TN now claims to have delivered thousands of fixes and more than 800 tax and regulatory updates to Oracle’s former customers.000 distinct Software and Support Materials. 2007 and switched to SAP TN. at SAP AG’s and SAP America’s direction. (“Metro Machine”) dropped all Oracle support effective on January 1. but used fake identification information like the name “NULL” and phone numbers like “7777777777” and “999 999 9999. Oracle has traced these illegal and unauthorized downloads to the same SAP TN IP address employed for the Honeywell downloads described above. Metro Machine Corp. SAP TN.000 distinct Oracle Software and Support Materials (far more than SPX could legitimately access or use). SPX Corporation (“SPX”) dropped all Oracle support on December 10. listed on its website. these users logged in using SPX credentials. SPX. like the others. In some cases. Over 300 distinct downloads just on November 30. “tn-wts01. G. In addition. SAP Adds The Ill-Gotten Gains To Its Coffers 81. 2006 were Software and Support Materials related to unlicensed Payroll software. Not coincidentally. These SPX downloads included over 1. SPX averaged approximately eleven downloads per month from Oracle’s support system. users purporting to represent SPX accessed and downloaded over 8. between October and December 2006. Metro Machine.” 80. Then. and some were traced to a computer with SAP TN’s initials in the title. In the month before Metro Machine dropped its support rights with Oracle. Nearly 400 of those downloads related to software programs that Metro Machine had not licensed 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 79. users logging into Oracle’s support system with Metro Machine’s credentials continued to download Software and Support Materials into March 2007.
C. Defendants have violated the Computer Fraud and Abuse Act. without authorization or by exceeding authorized access to such a computer. in addition to the irreparable harm caused by Defendants’ unfair competition. by intentionally accessing a computer used for interstate commerce or communication. and prospective customers and the associated license and support revenue to artificially inflate its market share. First Claim for Relief Violation of Federal Computer Fraud and Abuse Act (18 U. and by obtaining information from such a protected computer. without authorization or by exceeding authorized access to such a computer. 18 U. accessing a protected computer.S. interference with Oracle’s business relationships.S. 28 COMPLAINT .C. and by means of such conduct furthered the intended fraud and obtained one or more things of value.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. 84. §§ 1030(a)(2)(C) & (a)(4) & a(5)) (By Oracle Against All Defendants) 82. Defendants have violated the Computer Fraud and Abuse Act. or command and as a result intentionally causing damage without authorization to a protected computer owned by Oracle. including but not limited to Oracle’s Software and Support Materials.C. code.C. information. 85. Defendants have violated the Computer Fraud and Abuse Act.S. trespass on Oracle’s support website. and related computer fraud. current. and never disavowed it. Using Oracle’s own protected property to unfairly compete against and undercut Oracle. 18 U. SAP has thereby caused significant damage to Oracle through its SAP TN subsidiary. ratified it.S. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. 18 U. and with intent to defraud Oracle. 83. § 1030(a)(4) by knowingly. § 1030(a)(5)(A)(i) by knowingly causing the transmission of a program. § 1030(a)(2)(C). SAP has illegally converted Oracle’s former.
and files from Oracle’s computers. §§ 1030(a)(5)(A)(ii) & (iii) by intentionally accessing a protected computer without authorization. 87. 89. accessing.C. Defendants have violated the Computer Fraud and Abuse Act. including. § 1030(e)(2). data. 93. and without permission providing. Oracle has suffered damage and loss by reason of these violations. causing damage to Oracle. Defendants’ unlawful access to and theft from Oracle’s computers also have caused Oracle irreparable injury. without limitation. a means of accessing Oracle’s computers. or assisting in providing. 92. 88. programs.S. computer system. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. § 1030(g). 91. fraudulently. fraudulently. Defendants have violated California Penal Code § 502(c)(3) by knowingly.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. harm to Oracle’s data. and/or computer network. Unless restrained and enjoined. and making use of programs. recklessly or without due regard for their actions.S.C. Oracle’s remedy at law is not adequate to compensate it for these inflicted and threatened injuries. 29 COMPLAINT . computer system. copying. Defendants have violated California Penal Code § 502(c)(2) by knowingly and fraudulently.C. in an amount well over $5000 aggregated over a one-year period. in any event. and computer systems and other losses and damage in an amount to be proved at trial. but. Second Claim for Relief Computer Data Access and Fraud Act . Penal Code § 502 (By Oracle Against All Defendants) 90. and without permission.S. The computer system or systems that Defendants accessed as described above constitute a “protected computer” within the meaning of 18 U. taking. and/or computer network. Defendants will continue to commit such acts.Cal. entitling Oracle to remedies including injunctive relief as provided by 18 U. 18 U. and without permission accessing and using Oracle’s computer services. Defendants have violated California Penal Code § 502(c)(6) by knowingly.
and due to the continuing threat of such injury. fraudulently. Oracle is also entitled to recover its reasonable attorneys’ fees pursuant to California Penal Code § 502(e). 95. or causing to be accessed. Defendants have caused damage to Oracle in an amount to be proven at trial. These relationships contained the probability of future economic benefit in the form of profitable support service contracts and software licenses. 100. entitling Oracle to injunctive relief. Oracle is informed and believes that the aforementioned acts of the Defendants were willful and malicious in that Defendants’ acts described above were done with the deliberate intent to injure Oracle’s business and improve its own. 101. 97. 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 Defendants’ unlawful conduct within the meaning of California Penal Code § 502. Had Defendants refrained from engaging in the unlawful and wrongful conduct described in this complaint. and without permission accessing. Oracle owns the data that comprises the Software and Support Materials obtained by Defendants as alleged above. 98. has no adequate remedy at law. computer system. and/or computer network. 96. 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 has also suffered irreparable injury from these acts. Defendants have violated California Penal Code § 502(c)(7) by knowingly. Oracle is therefore entitled to punitive damages.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 . Oracle’s computers.
and conspiracy.C. in some cases. receipt of stolen property.C. 18 U. copied Oracle’s intellectual and contractual property. 106. § 1029. Penal Code § 496. violation of the Federal Computer Fraud and Abuse Act. § 1962. 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. 18 U. including.S. Oracle has suffered economic harm.. as alleged above. On information and belief.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.S. 103. causing certain current and prospective support clients to contract with Defendants instead of Oracle for their software support and maintenance and. As a direct and proximate result of Defendants’ actions. loss of profits from sales or licenses to 31 COMPLAINT . § 1343. 18 U. unauthorized access to computers.S. As a result of Defendants’ acts. and violation of the Stored Communications Act. renewed.S. but not limited to. 102. unjust enrichment. 104. and without the cost of competing fairly by independently developing the same support materials. and ultimately to migrate such customers away from Oracle’s software programs and onto their own. Penal Code § 502.C. §§ 270111. conversion. 18 U. Defendants’ conduct also constitutes trespass to chattels. Defendants gained unauthorized access to Oracle’s password-protected Customer Connection support website through false or improper credentials.S. wire fraud. These acts were undertaken by Defendants to obtain for themselves the software support contract revenue at Oracle’s expense. Cal. the above-described relationships have been actually disrupted. constitutes violations of numerous state and federal statutes and codes. violation of RICO. or expanded support contracts and software licenses with Oracle rather than Defendants. fraud and related activity in connection with an access device. 105. 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. for their enterprise software.C. § 1030 et seq. 18 U. including. but not limited to. Cal.C. This conduct.
Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. Defendants failed to act with reasonable care. Defendants’ interference with Oracle’s prospective economic advantage with its current and future customers. as described above. 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 knew or should have known about the economic relationship. there is a substantial probability that Oracle support customers would have initiated. 112. they used Oracle’s Software and Support Materials to obtain and retain for themselves software 32 COMPLAINT . 108. oppressive. malicious. These relationships contain the probability of future economic benefit in the form of profitable support service contracts and software licenses. Fourth Claim for Relief Negligent Interference With Prospective Economic Advantage (By Oracle Against All Defendants) 109. or expanded support contracts and software licenses with Oracle rather than Defendants. their actions are likely to recur and will cause Oracle irreparable injury for which there is no adequate remedy at law. described above. Defendants’ wrongful conduct was a substantial factor in causing this harm. Oracle has an expectancy in continuing and advantageous economic relationships with current and prospective purchasers and licensees of Oracle’s support services and 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 current and potential customers of Oracle support services and software programs. 110. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. renewed. Instead. Had Defendants refrained from engaging in the unlawful and wrongful conduct described in this complaint. Unless Defendants are restrained by appropriate injunctive relief. and in conscious disregard of Oracle’s rights. 111. 107. was willful.
C. 33 COMPLAINT .C. unauthorized access to computers.S. 18 U. and software products. § 1343. Defendants’ wrongful conduct was a substantial factor in causing this harm. violation of the Federal Computer Fraud and Abuse Act. § 1029. and used that property to obtain and retain Oracle’s current and prospective clients. but not limited to. Penal Code § 502. wire fraud.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. the above-described relationships have been actually disrupted. constitutes violations of numerous state and federal statutes and codes. 18 U. their actions are likely to recur and will cause Oracle irreparable injury for which there is no adequate remedy at law. 116. § 1030 et seq. and conspiracy.C. Unless Defendants are restrained by appropriate injunctive relief. Oracle has suffered economic harm.. and violation of the Stored Communications Act. loss of profits from sales to current and potential customers of Oracle support. 18 U. 18 U. Defendants gained unauthorized access to Oracle’s password-protected Customer Connection support website through false or improper credentials. conversion. as alleged above. Penal Code § 496. copied Oracle’s intellectual and contractual property. but not limited to. As a direct and proximate result of Defendants’ actions. § 1962. Cal. fraud and related activity in connection with an access device. unjust enrichment. 114. including.S.S. violation of RICO. 115. including. Cal.C. This conduct. causing certain current and prospective support clients to contract with Defendants instead of Oracle for their software support and maintenance and. maintenance. for their enterprise software. in some cases. 18 U.C. 117. §§ 270111. Defendants’ conduct was wrongful by a measure beyond the fact of the interference itself.S. receipt of stolen property. Defendants’ conduct also constitutes trespass to chattels. As a result of Defendants’ acts. 113.S.
and unfair competition as defined by California Bus.S. 120. all in an effort to gain unfair competitive advantage over Oracle. §§ 2701-11. 18 U. Penal Code § 502. conversion. Cal. Defendants’ conduct constitutes violations of numerous state and federal statutes and codes.. 18 U. conversion. and other illegal acts and practices as alleged above.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 118. violation of RICO. 34 COMPLAINT . wire fraud. The acts and conduct of Defendants constitute fraudulent. 18 U. unauthorized access to computers. 122. intentional interference with prospective economic advantage. Code § 17200 (By Oracle Against All Defendants) Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here.C.S. 121. 123. interference with business relationships. & Prof. unjust enrichment. § 1029. Defendants’ conduct also constitutes trespass to chattels.C.S.S. § 1962. receipt of stolen property. Fifth Claim for Relief Unfair Competition . Defendants have improperly and unlawfully taken commercial advantage of Oracle’s investment in its confidential. including. 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. 119. In light of Defendants’ conduct. violation of the Computer Fraud and Abuse Act. and copyrighted Software and Support Materials. Defendants have engaged in unlawful business acts or practices by committing acts including computer fraud. §§ 1030 et seq. Penal Code § 496.S.C. but not limited to. negligent interference with prospective economic advantage. proprietary.C. and conspiracy. 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. Bus. fraud and related activity in connection with an access device. trespass. Code §§ 17200. Cal. 18 U. § 1343. unlawful.Cal. and violation of the Stored Communications Act.C. & Prof. 18 U. et seq.
expressly or impliedly. Oracle has an exclusive right to possession and distribution of such property.. retention. and deceptive business practices. earnings. This property is the sole and exclusive property of Oracle. or distribution of such property. and should be enjoined from further unlawful. unfair. 125. to Defendants’ copying. profits. removal. returning the value of the stolen property itself and any revenue earned from it. and all copies of such. in their possession. which is valuable to Oracle and vital to its continued business operations. custody. will continue to suffer irreparable injury. Oracle has also suffered irreparable injury and. proprietary. 35 COMPLAINT . including. Defendants’ unfair business practices have unjustly minimized Oracle’s competitive advantage and have caused and are causing Oracle to suffer damages. but not limited to. or control. downloading. and benefits they may have obtained in violation of California Business & Professions Code § 17200 et seq. Defendants should be compelled to disgorge and/or restore any and all revenues. whereby Oracle has no adequate remedy at law. Defendants intentionally and willfully entered Oracle’s password-protected Customer Connection support website without permission and took possession of Oracle’s property. Oracle’s confidential. Defendants should further be ordered to return all materials taken from Oracle. including. 130. Oracle at no time consented. and copyrighted Software and Support Materials. 128. Instead of paying Oracle for the use of its property. compensation. As a result of such unfair competition.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. 129. unless Defendants are enjoined from such unfair competition. all of which Oracle stored on its computer system. but not limited to. 126. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. Sixth Claim for Relief Conversion (By Oracle Against All Defendants) 127.
134. profits from potential purchasers of Oracle support services and licensees of Oracle software products. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. Oracle is entitled to damages and repossession of the converted property. and the Software and Support Materials on that support system. or in the alternative. Defendants have been in knowing and unauthorized possession and control of such property since at least between September 2006 and the present. at the latest. or in the alternative. 133. As a direct and proximate result of Defendants’ actions. 135. in an amount to be determined at trial. Oracle is entitled to restitution of the Defendants’ ill-gotten gains. Oracle had legal title to and actual possession of Customer Connection.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 131. In addition. Allowing Defendants to retain the benefits received as a result of their wrongful acts would unjustly benefit Defendants at Oracle’s expense. At all times mentioned in this Complaint. Oracle is entitled to an award of the value of the property taken. Since that time. with interest. 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. 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. 132. its access-restricted internet-based support system. 137. as described above. 36 COMPLAINT . Seventh Claim for Relief Trespass To Chattels (By Oracle Against All Defendants) 136. Defendants’ wrongful conduct was a substantial factor in causing this harm. Oracle will seek its election of remedies at trial. and will continue to lose. and other damages in an amount to be proven at trial.
141. 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. Oracle is entitled to recover any and all damages it sustained as a result of such trespass. which took substantial time and money for Oracle to develop. the integrity and functionality of Oracle’s computer system and data. including. including Defendants’ interference with Oracle’s business relationships and other unfair business practices. computer fraud concerning. Defendants continue to unjustly retain these benefits at the 37 COMPLAINT . 140. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. damage to Oracle’s rights to dominion and control over its property. Defendants’ trespass interfered with. and damage to the confidential and copyrighted nature of the information on Oracle’s website. Defendants’ trespass therefore threatens to cause irreparable harm to Oracle. Defendants caused Oracle’s property to greatly diminish in value and deprived Oracle of the intended use of its computer systems. Defendants’ trespass and interference proximately caused damage to Oracle. Defendants intentionally interfered with Oracle’s use or possession of both Customer Connection and Oracle’s related internal databases and systems. and conversion of the Software and Support Materials. 143. Defendants unjustly received benefits at the expense of Oracle through their wrongful conduct. damage to the functionality of Oracle’s computer system and data. As a result. and damaged. Eighth Claim for Relief Unjust Enrichment/Restitution (By Oracle Against All Defendants) 142. as well as Defendants’ trespass on.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 138. 139. and the Software and Support Materials housed for licensed access through Customer Connection. for which Oracle’s remedy at law is not adequate to compensate it for the injuries inflicted and threatened. Defendants will continue to commit such acts and other competitors will be encouraged to sweep Oracle’s website. but not limited to. in an amount to be determined at trial.
intentionally. as well as Defendants’ trespass on. and harm. malicious. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. 144. encouraging. It would be unjust for Defendants to retain any value they obtained as a result of their wrongful conduct. loss of profits from sales to current and potential customers of Oracle support services and licenses for Oracle’s software programs. 148. and conversion of the Software and Support Materials. and commission of. The wrongful conduct committed pursuant to the conspiracy was a substantial factor in causing this harm. but not limited to. loss. 146. these wrongful acts was willful. ratifying. Oracle is accordingly entitled to full restitution of all amounts in which Defendants have been unjustly enriched at Oracle’s expense. damage.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 expense of Oracle. and knowingly agreed and conspired with each other to engage in the alleged wrongful conduct. computer fraud concerning. and in furtherance of. that agreement and/or furthered the conspiracy by cooperating. Oracle has suffered injury. including. and in conscious disregard of Oracle’s rights. Defendants did the acts alleged pursuant to. Ninth Claim for Relief Civil Conspiracy (By Oracle Against All Defendants) 145. 149. Defendants’ intentional agreement to commit. 147. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. Defendants willfully. As a direct and proximate result of the acts in furtherance of the conspiracy. or adopting the acts of the others. 38 COMPLAINT . including Defendants’ interference with Oracle’s business relationships and other unfair business practices. oppressive.
152. As fully described above. including interference with Oracle’s business relationships and other unfair business practices. malicious. The wrongful conduct aided and abetted by the Defendants was a substantial factor in causing this harm. and harm. Defendants also aided and abetted the described wrongful conduct of the other Defendants by giving substantial assistance and/or encouragement that. 153. oppressive. loss. Oracle has suffered injury. 39 COMPLAINT . damage. Defendants had full knowledge or should have reasonably known of the true nature of the wrongful conduct of each other Defendant. and conversion of the Software and Support Materials. 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. computer fraud concerning. 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. including. as well as Defendants’ trespass on. Defendants’ aiding and abetting of these wrongful acts was willful. and aided and abetted such wrongful conduct. and in conscious disregard of Oracle’s rights. 154. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct.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. loss of profits from sales to current and potential customers of Oracle support services and licenses to Oracle software programs. separately considered. but not limited to. 151. 150. was wrongful in and of itself. by providing substantial assistance and/or encouraging the others to act.
Defendants have received money as a result of their misconduct. Oracle’s confidential.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 156. or using any property obtained from Oracle’s website. without Oracle’s authorization. to a full accounting. and attorneys. without authorization or consent. but not limited to: (a) Intentionally and/or negligently interfering with Oracle’s prospective economic advantage with its existing and potential customers. at Oracle’s expense. 157. proprietary. and that some or all of such money is rightfully due to Oracle. for the purpose of sabotaging Oracle’s ability to do business and compete in the market. Prayer For Relief WHEREFORE. willfully. distributing. Oracle is entitled. (d) Fraudulently accessing and intentionally trespassing on Oracle’s password-protected Customer Connection website. including without limitation the Customer Connection website. their officers. and unlawfully taking commercial advantage of Oracle’s investment in its Software and Support Materials. including without limitation. internal documents. in furtherance of their unlawful and deceptive scheme as described above. servants. Defendants have obtained business through the use of unlawful conduct including. (2) selling. and copyrighted Software and Support Materials. The amount of money due from Defendants to Oracle is unknown to Oracle and cannot be ascertained without an accounting of the income and gross profits Defendants have obtained through their wrongful and unlawful conduct. and copyrighted Software and Support Materials. 158. Since at least September 2006. For a preliminary and permanent injunction restraining Defendants. and valuable 40 COMPLAINT . and those in active concert or participation with any of them from: (1) accessing any Oracle restricted-access or customer website. employees. (b) Improperly. including data. Oracle respectfully prays for the following: A. proprietary. therefore. and. (c) Willfully converting Oracle’s confidential. agents.
including. For an accounting. and valuable updates. proprietary. as set forth in this Complaint. without limitation. and other computer code. internal documents. proprietary. (4) otherwise engaging in acts of unfair competition and interference with Oracle’s business relationships. and other computer code. including data. and valuable updates. Court deems just and proper. and. patches. G. that Defendants took from Oracle. For prejudgment interest. 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. on the basis of their willful and deliberate unauthorized computer access. fixes. For an Order awarding Oracle such other and further relief as the . For an Order directing Defendants to return Oracle’s property. I. 41 COMPLAINT For damages to be proven at trial. and other computer code. downloading or copying property from Oracle’s website without Oracle’s authorization. fixes. B. and copyrighted Software and Support Materials. intentional interference with Oracle’s prospective economic advantage. under oath.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 updates. For an Order awarding Oracle its attorneys’ fees and costs. and copyrighted Software and Support Materials. That the Court order Defendants to pay Oracle punitive damages in a sum to be determined at trial. including data. H. internal documents. but not limited to Oracle’s confidential. setting forth in detail the manner and form in which Defendants have complied with the injunction. patches. patches. D. aiding and abetting and conspiracy. C. K. For restitution and disgorgement of all ill-gotten gains unjustly obtained and retained by Defendants through the acts complained of here. Oracle’s confidential. fixes. (3) removing. J. F. including.
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