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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
an SAP America branch office location and home of its wholly-owned subsidiary 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 departed customers.” In other cases. These “customer users” supplied user information (such as user name. some users logged in with the user names of “xx” “ss” “User” and “NULL. For example. In some cases. For example. Oracle has found many examples of similar activity. 9. this user information did not match anything: it was fake. including the ones described above. Rather. Texas IP address used to access and download Oracle’s Software and Support Materials is connected directly to SAP’s computer network. SAP users effectively swept much of the contents of Oracle’s system onto SAP’s servers. Across its entire library of Software and Support Materials in Customer Connection.” Others used phony email addresses like “test@testyomama. Oracle’s server logs have recorded access through this same IP address by computers labeled with SAP identifiers using SAP IP addresses..000 unauthorized downloads of Software and Support Materials relating to hundreds of different software programs. Texas. Employing these techniques. email address.com” and fake phone numbers such as “7777777777” and “123 456 7897. the access originated from an internet protocol (IP) address in Bryan. SAP blended log-in information from multiple customers with fake information. combined with phony user log-in information. and phone number) that did not match the customer at all. and downloaded Software and Support Materials even after the customer had dropped its support rights with Oracle. to gain access to Oracle’s system under false pretexts. Indeed. one user name connected to an SAP IP address appears to have logged in using the credentials of seven different customers in a span of just 15 days – all from SAP computers in Bryan. All of these customers whose IDs SAP appropriated had one critical fact in common: they were. Oracle to date has identified more than 10. like Metro Machine Corp. 7. SAP TN is a company that purports to provide technical support services on certain versions of Oracle’s PeopleSoft and JDE software programs. 8. This systematic theft of Oracle’s Software and Support Materials did not originate from any actual customer location. SAP employees used the log-in IDs of multiple customers. or 4 COMPLAINT . Texas. In many instances. The Bryan.
10. developers. SAP AG spokesman Bill Wohl vowed that SAP AG would use SAP TN to “keep the pressure on 1 “JDE” refers to J. copyrighted Software and Support Materials. revenue comes from three basic activities: (a) license of the underlying software. this theft appears to be an essential – and illegal – part of SAP’s competitive strategy against Oracle. SAP’s own statements confirmed it. Industry observers noted this fundamental shift in the competitive landscape. 12. SAP apparently has now warehoused an extensive library of Oracle’s proprietary.D. SAP AG acquired SAP TN. an independent software support company founded by former PeopleSoft software engineers. “Oracle Corp. and (c) support contracts to keep the software updated and upgraded. in 2003.” 13. Oracle officially became a player on SAP’s turf. and support. 1 ranked SAP. aimed at taking market share from No. Oracle had previously announced that in January 2005 it would complete its acquisition of PeopleSoft. new customers of SAP TN – SAP AG’s and SAP America’s software support subsidiary whose sole purpose is to compete with Oracle. “After the acquisition of PeopleSoft earlier this year. 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. (b) consulting relating to the implementation and operation of the software. Edwards World Solutions.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. 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. Oracle said it has thousands of developers building the new application suite. * 11. a software company acquired by PeopleSoft. called Project Fusion.” Another mused. In January 2005. One industry analyst stated that. consulting. Not by coincidence. 5 COMPLAINT . Inc. As a result of this illegal activity. * * In the world of enterprise software applications. increasing Oracle’s potency as a competitor to SAP AG for enterprise applications software. through SAP America. and support technicians. As explained below.
industry observers deemed the “Safe Passage” program “measurably more aggressive. SAP TN did not appear to have the development capability to meet the support commitments advertised in the “Safe Passage” brochures at any price. the 6 COMPLAINT SAP’s unlawful copying and theft includes. SAP appeared to focus more on growing the SAP TN sales force rather than investing in or expanding SAP TN’s tiny development team. Indeed. committed to throw “a lot of additional resources” behind SAP TN (which consisted of only 37 employees in total). following: · More than 10. Bill McDermott. or the day of. with indications that this number may go significantly higher if traced further back in time. As reported in industry publications. explicitly designed to transition customers away from Oracle products and onto the SAP software platform. much less the 50% discount promoted by SAP. SAP stole much of the Software and Support Materials directly from Oracle. the . crowed “There’s nothing that I love more than to win. or even come close to it. It certainly did not match Oracle’s investment in development resources. Bill McDermott. SAP America’s CEO.” In connection with the SAP TN acquisition.” and a sign that “SAP has taken the gloves off. 15.000 illicit downloads from Customer Connection between September 2006 and January 2007. 14. by way of example. Nevertheless. · A systematic pattern of “sweeping” Oracle’s Customer Connection support website from SAP TN servers just days before. a program aimed at siphoning off valuable software maintenance revenue from Oracle and persuading Oracle customers to switch software products [to SAP].” Although SAP America President and CEO.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. SAP advertised this strategy as its “Safe Passage” program. 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. Publicly.” 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. SAP TN’s services “form[ed] the basis of [SAP AG’s] Safe Passage initiative.
Through its illegitimate and illegal business practices. · Accessing and downloading Software and Support Materials across multiple product lines in multiple lines of business available on the Customer Connection support website.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. in the purported name of customers that had never licensed those products and had no legal access to them. to try to “keep the pressure on Oracle. or in some cases on behalf of former Oracle customers with no access rights to Oracle’s Software and Support Materials whatsoever. Oracle has no adequate remedy at law for the harm threatened and caused by these acts. · On multiple occasions. its many employees. 7 COMPLAINT . the indiscriminate. and deceptive business practices that continues to this day. 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. unlawful. authorized customers or through normal access to Oracle’s Customer Connection system. SAP has taken Oracle’s Software and Support Materials and apparently used them to insinuate itself into Oracle’s customer base. and to attempt to convert these customers to SAP software applications. 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. and theft of. clearly-marked internal proprietary Oracle support documents not available even to licensed.” SAP has been engaged in a systematic program of unfair. These illegal business practices threaten to cause irreparable harm to Oracle. In short. and its customers. expiration of a new SAP TN customer’s support contract with Oracle. · The improper access to.
19. Oracle USA is the successor to PeopleSoft USA. OIC is the owner of the copyrights at issue in this action. 23. Oracle USA develops and licenses database and applications software programs and provides related services. 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. Directly and through its subsidiaries. State of California. OIC is a California corporation duly authorized to do business in the State of California. State of California. The corporate relationship of the three named defendants is set forth in the chart below. Oracle Corporation and Oracle USA are the licensees of the copyrights at issue in this action. Oracle Corporation and Oracle USA are authorized to license to end users the copyrighted computer software programs and other works at issue in this action. Texas. (“PeopleSoft”) and JDE. 22. County of San Mateo. 8 COMPLAINT . Oracle USA is a Colorado corporation duly authorized to do business in the State of California. Oracle Corporation develops and licenses database and applications software programs and provides related services around the world. Pennsylvania.. County of San Mateo. 18. 21. 20. THE PARTIES 17. SAP America is a wholly-owned subsidiary of SAP AG. Oracle Corporation is a Delaware corporation with its principal place of business in Redwood City. SAP TN is a wholly-owned subsidiary of SAP America. Walldorf. with its only place of business in Redwood City. SAP TN is a Texas corporation with its principal place of business in Bryan. Inc. County of San Mateo. with its principal place of business in Redwood City. State of 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 II. Germany.
each of the Defendants. through its 100% ownership of both SAP America and SAP TN. alter ego. joint venturer. unincorporated association. affiliate. parent. whether individual. At all material times. sell. At all material times. representative.S. through its 100% ownership of SAP TN.S. 26. partnership. including Does 1 through 50. or otherwise. SAP AG negotiates and enters into software license and support agreements directly within the United States and. 25. or co-conspirator of the others. SAP AG had both the right and the authority to control the actions of both corporations. corporation. SAP America and SAP TN advertise. 27. employee. California. promote.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. By way of example only. Defendants all are doing business in and/or have directed their activities at California. and support customers in California and in this judicial district. subsidiary. had full knowledge of and gave substantial 9 COMPLAINT . Similarly. service. SAP America had both the right and authority to control the actions of SAP TN. and therefore sues these defendants by such fictitious names. and specifically this judicial district. SAP AG also holds an annual meeting of its Board of Directors in Palo Alto. 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. at all material times. license. Subsidiary) Oracle is currently unaware of the true names and capacities of Does 1 through 50. Oracle will amend this Complaint to allege their true names and capacities when ascertained. specifically in this judicial district. servant. inclusive. 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. was the agent. partner. SAP AG (German Parent Corporation) SAP America (Wholly-owned U.
each was acting within the scope of such agency. § 1391. This Court has supplemental subject matter jurisdiction over the pendent state law claims under 28 U. 29.C. and in doing the things alleged.S. representation.C. et seq. 17 U.S.C.S. pursuant to 28 U.S. Assignment is proper in this division under Civil L. FACTUAL ALLEGATIONS A. IV.C. In addition. partnership. 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. and the first to receive J.C. § 1331. a substantial part of the property that is the subject of the action is situated in this district. and this Court has subject-matter jurisdiction over this action pursuant to 18 U.S. § 1338.C. V. affiliation. service. and the Court will have subjectmatter jurisdiction over those claims pursuant to 28 U.S. and the Court has personal jurisdiction over each of the parties as alleged throughout this Complaint. Oracle will seek to amend this Complaint to add claims for copyright infringement under the Copyright Act. § 1030(g) and 28 U.S. or conspiracy. because a substantial part of the events giving rise to the dispute occurred in this district. 18 U.D. Oracle is the world’s largest enterprise software company. and each is legally responsible for the acts and omissions of the others... Power & Associates’ global certification for outstanding service and support based 10 COMPLAINT . III. § 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. INTRADISTRICT ASSIGNMENT 31. §§ 101. Venue in this district is appropriate. when the relevant copyright registrations issue. 3-2 (c) and (d). joint venture.R. VENUE 30.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. JURISDICTION 28. Oracle’s Software and Support Materials 32. employment. §§ 1030 et seq. Oracle’s first cause of action arises under the Computer Fraud and Abuse Act. VI.
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”). These terms notify the user that the software available to download from Oracle is Oracle’s copyrighted material. provided that (1) the below copyright notice appears in all copies and that both the copyright notice and this permission notice appear. and (3) no modifications of any Documents are made. the user must click on a button indicating that it accepts these terms. such as a Software Application Request (“SAR”) through the SAR Search Web Application. agree to additional legal restrictions. 13 COMPLAINT . users accessing specific materials. 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.” To download a SAR. WITHOUT LIMITING THE FOREGOING. 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 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. 41. Use for any other purpose is expressly prohibited. 42. 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. In addition. press releases. datasheets and FAQs) from this server (“Server”) is granted. The Legal Download Agreement further restricts use of documents downloaded from the website: Permission to use Documents (such as white papers. Any reproduction or redistribution of the Software not in accordance with the License Agreement is expressly prohibited. software action requests.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JDEdwards and/or its affiliates or suppliers.
000 people joining by Webcast and phone. Rather than improve its own products and offerings. SAP AG suddenly found itself in a far different competitive environment than the one in which it had grown comfortable. events unfolded at a rapid pace: eleven days after its announcement. 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. Oracle would “not [be] a competitor which could really hurt us.” After the merger.000 business applications software customers throughout the world. But SAP AG had no answer for the business proposition the new Oracle offered.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. the combination revitalized Oracle overnight as a competitor in the business software applications business.000-strong combined workforce of Oracle and PeopleSoft would provide unparalleled innovation and support to 23. and geographic and product scope. SAP AG instead considered how to undermine Oracle. these same products. broader product line of enterprise applications software programs to compete against SAP AG. SAP AG CEO Henning Kagermann claimed that even with PeopleSoft. size. 2005. at its headquarters with more than 48. how the nearly 50. 46. Oracle launched the newly-united company and unveiled. 44. 45. 2004 at the trial on the Department of Justice’s unsuccessful effort to block Oracle’s acquisition of PeopleSoft. despite not owning any of the software code for. Not only do many SAP AG customers use Oracle’s superior database software programs. he even claimed to wish Oracle “good luck” in competing with SAP AG. 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. Richard Knowles. As SAP AG reeled. or intellectual property rights to. but now Oracle offered a deeper. As SAP America’s Vice President of Operations. On January 7. Oracle Threatens To Unseat SAP 43. 14 COMPLAINT . testified on June 23. 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.
Texas and founded by former PeopleSoft employees. in December 2004. SAP AG’s “front man for SAP AG’s mergers and acquisitions strategy. So SAP AG had to make the price right. SAP Responds To Oracle Competition With Its “Safe Passage” Scheme 48. 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. just weeks before Oracle would close the PeopleSoft acquisition.” 49. SAP TN would eventually lose its customer base. however. but – with the Oracle/PeopleSoft 15 COMPLAINT . SAP TN 47. As described in a glossy spread in a leading industry publication. SAP AG bought “another arrow in its quiver to hunt after Oracle’s customers. SAP AG proposed to buy SAP TN outright and make it a wholly-owned – and wholly-beholden – subsidiary. Oracle. and to use SAP TN to do it.” Aligning with SAP AG made little sense for SAP TN. SAP TN was a small software services company. To retain full control over every detail of its scheme to lure away customers from Oracle. but a calculated competitive move. In December 2004. SAP AG has refused to disclose the terms of its SAP TN purchase.” Mackey made Nelson an offer “he couldn’t refuse. SAP TN president Andrew Nelson got “the magic phone call” from Jim Mackey. JDE.” D. 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.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. As one industry journalist explained. 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. by providing low-cost maintenance and support services to PeopleSoft and JDE customers running assorted versions of these software programs. As one industry observer put it. it instead focuses on simply keeping the software up and running for an annual fee. Acquiring SAP TN was not a mere investment by SAP AG. often outdated. and later. headquartered in Bryan. because to the extent SAP AG successfully undermined Oracle by having its customers move from Oracle’s software to SAP AG’s software.
in connection with converting Oracle customers to SAP support (via SAP TN). Andrew Nelson. SAP AG would try to use SAP TN as a means of “speeding-up” the migration of PeopleSoft and JDE users to SAP platforms. 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. publicly vowed to bankroll this effort to undermine Oracle by putting “a lot of additional resources into TomorrowNow. to lure the support business over. ease integration with SAP NetWeaver(TM) and begin the process of innovating their businesses today. 52. On January 19. publicly indicating that SAP TN was authorized and intended to implement SAP AG’s goals. stated. SAP TN agreed to the deal and cast its lot with SAP AG. Colin Sampson.” 51.” The Senior Vice President and Chief Operating Officer of SAP Asia Pacific. Bill McDermott. Second. As SAP AG Managing Director Alan Sedghi admitted. identified SAP TN as instrumental to the parent company’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. Henning Kagermann. admitted that the SAP TN acquisition was “an integral part” of SAP’s Safe Passage program. SAP AG’s CEO. 2005. “We're owned by SAP.” 16 COMPLAINT . SAP AG’s top executives unveiled SAP AG’s acquisition of SAP TN as the centerpiece of its new “Safe Passage” scheme. We want them to be successful. SAP America CEO Bill McDermott claimed “The SAP Safe Passage offering gives companies an affordable way to protect their current investments. SAP would aggressively campaign to migrate those customers to an SAP enterprise software platform.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. First. 50. After the acquisition.” A month later. The CEOs stated the proposition more bluntly. SAP America’s CEO. in barely a month. at the SAP AG annual meeting. In April 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 would offer cut-rate pricing combined with the promise of essentially unlimited future support to former PeopleSoft and JDE support customers.
These lower cost alternatives advertised by SAP AG were to come directly through SAP TN. SAP sales representatives unleashed a torrent of marketing materials designed to exacerbate and leverage perceived.000 direct mail solicitations to Oracle customers. Instead. SAP AG offered maintenance support through SAP TN. SAP provides solutions. SAP AG’s “second wave” included “an intensive customer recruitment campaign.” 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. technology and maintenance services. An April 2005 SAP AG press release apparently aimed to increase perceived doubt among Oracle customers by announcing a “second wave” of “Safe Passage. Beginning in January 2005. 17 COMPLAINT . it took a hands-on approach. 55. quality support from Oracle. As reflected on SAP AG’s website: “SAP offers Safe Passage for PeopleSoft. offering significantly lower cost maintenance alternatives to Oracle customers running PSFT/JDE solutions” through 70. consider another option: SAP. albeit unfounded. To give teeth to these commingled sales efforts.” (emphasis supplied) SAP America’s website promises that “SAP and TomorrowNow can cut your maintenance costs by as much as 50% through 2015. SAP AG did not simply sit back and leave the recruiting of potential Safe Passage customers to SAP TN’s sales force. If customers declined to convert to SAP TN. To implement Phase Two of its plan (luring Oracle customers to the SAP enterprise software platform). SAP implemented Phase One immediately. the SAP AG sales personnel would pressure the customers to drop Oracle products outright in favor of SAP AG’s suite. It deployed its salespeople to contact potential customers and push them to switch to SAP TN’s services. officially “bundled” with SAP AG enterprise software as a centerpiece of the Safe Passage program. JD Edwards.” To exploit the fear it intended to create.” and elsewhere says that “Safe Passage maintenance and support are delivered worldwide through TomorrowNow. and Siebel customers – If Oracle’s options have you worried.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.” 54. PeopleSoft and JDE customer uncertainty about the prospects for long-term.
2005 announcement that it would acquire Siebel Systems. SAP America President and CEO. By March 2006.’s own products [the Siebel products] for a far cheaper price. technology. SAP announced it would extend its Safe Passage program to Siebel 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 56. 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. SAP grew more desperate. and more aggressive. SAP AG’s President of Customer Solutions and Operations. “SAP AG plans to announce . 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.” but its services were expanded to support more Oracle product lines and a wider range of customers. including through its September 12. At the same time. Henning Kagermann. investment protection and a clear road map to the next generation of business software. In October 2005.” 57.com after Oracle’s announcement of its impending Siebel acquisition. SAP AG’s CEO. Léo Apotheker. that it will offer technical support for more of rival software maker Oracle Corp. boasted that Safe Passage “continues to do really well. as Oracle continued to take market share and expand its product offerings. SAP AG continued to tout the success of Safe Passage. companies and corporate cultures. SAP AG boasted in a press release that more than 200 customers had signed up for Safe Passage. By July 2006.” including because SAP AG “extended the program in order to offer it as well to Siebel 18 COMPLAINT .” How SAP could offer instantaneous.” SAP’s “cheaper price” (referred to elsewhere as “cut rate” support) continued at “50 cents on the dollar for maintenance fees. promised SAP AG would use SAP TN and the Safe Passage program to “fight for” more customers. maintenance services. SAP executives touted the Safe Passage program’s limited success in its first year. 58. In a July 2006 earnings call. Bill McDermott. As reported on Forbes. SAP AG CEO Henning Kagermann conceded that SAP had lost as much as 2% market share to Oracle. . the program it implemented partly through SAP TN. curiously. and which it claimed “offers companies SAP solutions. . round the clock Siebel code support within a few weeks of Oracle’s acquisition announcement remained a mystery. However.
It was not clear how SAP TN could offer. without infringing on Oracle’s intellectual property. “customized ongoing tax and regulatory updates. F.” E. A Deal Too Good To Be True 59. most remarkably. SAP unlawfully accessed and copied Oracle’s Software and Support Materials. Although SAP put a brave face on its ability to compete with the increasingly potent Oracle applications offerings. 24x7x365” on software programs for which it had no intellectual property rights. 62.000 software and support engineers to create and help implement the code fixes.” “fixes for serious issues.” and. patches. and updates that comprise the advanced support services required by Oracle’s licensed customers. even after having expanded its ranks to 150 employees. To compound the puzzle. and other labor-intensive support items that a customer would need to maintain useful. 60. Oracle. simply did not add up. Oracle has now solved this puzzle. optimally functioning Oracle software.” By extending the Safe Passage program to Siebel customers. “30-minute response time. Apotheker claimed that SAP now had “a global network of [SAP TN] capabilities” – enough to “gain significant traction. The economics. and in conjunction with opening new SAP TN offices around the world. SAP continued to offer this comprehensive support to hundreds of customers at the “cut rate” of 50 cents on the dollar. bug fixes. some industry analysts wondered whether a small company like SAP TN.” “full upgrade script support. To stave off the mounting competitive threat from Oracle. and purported to add full support for an entirely different product line – Siebel – with a wave of its hand. and the logic. The SAP Solution: Stolen Passage 1. 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. as it did on its website and its other materials. by comparison. 61. maintains a development force of more than 15. Oracle Finds A Suspicious Pattern To analyze and improve on its industry leading support services. patches. 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 .
Oracle discovered a pattern. Oracle soon discovered that many of these “customers” had taken massive quantities of Software and Support Materials beyond their license rights. a user purporting to be that customer.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. including dozens. over and over again. Frequently. In late 2006. 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. Indeed. Some of these apparent customer users even downloaded materials after their contractual support rights had expired. In the course of this investigation. continue search” option. in the month before a customer’s Oracle support expired. 64. unexplained spikes in the number of customers on the online support website who had clicked the “No. 2. the support system responds by offering the customer further options. would access Oracle’s system and download large quantities of Software and Support Materials. 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. continue search” option. 63. If the customer selects the “No. hundreds. Oracle also discovered that the downloaded Software and Support Materials included internal documents not available even to licensed customers and not available through normal. and Oracle discovered that each response – each answer by users pretending to be the customer – occurred in a matter of seconds or less. to take a copy of them all. apparently. or thousands of products beyond the scope of the specific customer’s licensed products and permitted access. Oracle noticed huge. Oracle regularly compiles this data to assess whether its system helped customers resolve their support issues. these clicks could not reflect real responses from any human customers actually reading the solutions they had accessed. Given the extreme speed at which the activity occurred. 65. These clicks numbered in the thousands for several customers. 20 COMPLAINT . And. employing the customer’s log-in credentials. with the aim of continually improving the support system for customers. authorized use of Customer Connection. Instead.
Quality. (5) Nigel Pullan. SAP TN’s management. V. (2) Bob Geib. In addition. sublicense. International Sales. six list prior employment experience with PeopleSoft.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.D. or any portion thereof. · That the customer username and password are for the customer’s sole use in accessing this support server.P. · Not to access the customer support system if it is not the customer’s authorized and designated Oracle technical support contact. disclose. 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.P. Global J. · Not to directly or indirectly. JDE. and a significant number of its employees. including: (1) Andrew Nelson. or Oracle. formerly worked at PeopleSoft and JDE. · 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. and (6) Shelley Nelson. appear to have applied their familiarity with the Customer Connection website to directly participate in and perfect the illegal 22 COMPLAINT . Of SAP TN’s tenmember management team. or lease the Software or Documentation. North American Sales. SAP TN has intimate familiarity with these important restrictions and conditions relating to Oracle’s Software and Support Materials.P. (3) Laura Sweetman. who is reflected as the person performing many of the downloads at issue. rent. distribute. Global PeopleSoft Support. Edwards Support. or third party training. former PeopleSoft employees who work for SAP. V.P. use.P. V. · That the Materials on the support website are confidential information subject to existing confidentiality agreements. (4) Mel Gadd. for third party use. such as Wade Walden. relicense. President and CEO.
OCE Technologies. display.S. Specific Examples Of SAP TN’s Unlawful Customer Downloads SAP TN’s improper access to. Interbrew UK. and therefore committed its theft knowingly and intentionally. § 506. Such acts constitute copyright infringement under 17 U. offer for sale. 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. Inc. SAP TN’s acts violated Oracle’s exclusive rights to use. reproduce. 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. Distribution & Auto Service.C. and in conscious disregard of Oracle’s protected intellectual property and the integrity of its computer systems.S. Abbott Laboratories. Smithfield Foods. 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. Honeywell International. S. Oracle’s Customer Connection website is too pervasive. Metro Machine Corp. 17 U. and distribute these works. B. Oracle has uncovered unlicensed downloads linked to SAP TN on behalf of numerous customers.. Laird Plastics. publish. Merck & Co. Bear.C. VSM Group AB. Caterpillar Elphinstone... Helzberg Diamonds. Herbert Waldman. By way of example 24 COMPLAINT . § 501 and also willful and intentional copyright infringement under 17 U. including without limitation. Berri Limited.. Stearns & Co. Fuelserv Limited. 74. §§ 101 et seq. Grupo Costamex. Inc.V. Stora Enso. SPX Corporation.. Mortice Kern Systems.A.C. Border Foods..S. 75. and impose strict confidentiality requirements. AbitibiConsolidated. SAP TN reviewed and agreed to the terms and conditions on Oracle’s support website before proceeding. and taking from. and covers too many individual violations. National Manufacturing. With literally thousands of software programs available for licensing. Accordingly. NGC Management Limited. 4. Texas Association of School Boards. to comprehensively detail here.. and Yazaki North America. Ronis.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. create derivative works.
Oracle subsequently connected many of the illegal downloads to an SAP TN IP address and to SAP TN’s employee. In the approximately three and a half year period before Honeywell switched to SAP TN. users purporting to be “Merck” logged into the Oracle support system and downloaded over 9.000 Software and Support Materials in less than two weeks in January 2007. 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. a user employing Honeywell’s log-in ID downloaded over 7. Oracle sets forth below illustrative instances of SAP TN’s illegal conduct regarding a few of its customers. licenses and receives support for many Oracle software products. Many of these “Merck” downloads came directly from an IP address in Bryan. Merck & Company. “Honeywell” downloaded over 450 distinct unlicensed solutions on January 16. More than 5. But.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of the nature and extent of SAP’s theft. 25 COMPLAINT . after switching to SAP TN. 2007. Most of these excessive downloads came during the course of four days. Then. Users logging into Oracle’s support system with Merck’s credentials continued to download Software and Support Materials into March 2007. This unlawful downloading even stretched across product families. Honeywell International (“Honeywell”) is listed on SAP TN’s website as a client. 77.000 distinct Software and Support Materials for JDE software. 76. but Oracle discovered users downloading JDE products with Honeywell’s credentials. In one specific library containing solutions for Enterprise One software. In the three months prior to that date. Honeywell. during which “Honeywell” was downloading almost 1800 solutions per day. Merck. These downloads spanned virtually every library in every line of business – far beyond the products to which Honeywell had authorized access as an Oracle customer. Inc. (“Merck”). 2007 and nearly 400 more the next day. Merck’s support rights for its JDE software products expired on January 1. one of the largest pharmaceutical companies in the world. Honeywell used and licensed PeopleSoft software applications. the unauthorized downloads did not stop there. Wade Walden – a former PeopleSoft employee now employed by SAP. Over 2.000 of the Software and Support Materials taken in this period were solutions that Honeywell was not licensed to take at all.
OCE-Technologies B.” Similar to the other customer examples. including specifically to a computer with SAP TN’s initials in the title.” In many cases. SAP TN users logged into Oracle’s support system using OCE’s credentials (and. authorization or other right to access and download the 5. many of these “OCE” users entered phony identification information. There is little chance that SAP TN intended OCE as the beneficiary of these massive sweeps. or other right to access and download these Software and Support Materials. authorization.” and phone numbers such as “4444444444” and “999 999 9999. such as the name “user” and phone numbers such as “123 456 7897. OCE.” and even “xxx xxx xxxx. in some cases. From December of 2006 to January of 2007. Texas. these illegal downloads are associated with the same IP address belonging to SAP TN in Bryan. using names such as “xx” “ss” and “NULL. “TN-DL03. SAP TN users employed fake identification information to download the Software and Support Materials.” Neither Merck nor SAP TN had any license. “TNL-02. false user names) and downloaded over 12. and could serve no legitimate or lawful business purpose.” 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. 26 COMPLAINT .000 distinct Software and Support Materials.” “9999999999. Homebuilder Management. users employing OCE’s credentials downloaded a large number of Oracle products relating to US Payroll.000 distinct items for which OCE had no license. since OCE does not run many of the software programs to which these downloads relate. (“OCE”) is located in the Netherlands and appears as a customer on SAP TN’s website. and Real Estate Management – none of which make sense coming from a European customer in support of its European business. and some were traced to a computer with SAP TN’s initials in the title. Like the other companies. and neither OCE nor SAP TN have any license. 78. Canadian Payroll. In the months leading up to the expiration of OCE’s support rights for its Oracle products.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Texas that belongs to SAP TN. These downloads included over 3.000-plus unlicensed Software and Support Materials from Oracle.V.
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. originated from the same IP address belonging to 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 79. these users logged in using SPX credentials. SPX. 2006 and became an SAP TN customer. Metro Machine.000 distinct Oracle Software and Support Materials (far more than SPX could legitimately access or use). SAP Adds The Ill-Gotten Gains To Its Coffers 81. In some cases. 2006 were Software and Support Materials related to unlicensed Payroll software. In addition.000 distinct Software and Support Materials. between October and December 2006. Not coincidentally. In the month before Metro Machine dropped its support rights with Oracle.” 80. Then. SAP AG and SAP America directed this 27 COMPLAINT . as reflected on SAP TN’s website. listed on its website. SPX averaged approximately eleven downloads per month from Oracle’s support system. illegally downloaded thousands of fixes and updates from Oracle’s restricted customer support website. These SPX downloads included over 1.” Many of these SPX downloads. but used fake identification information like the name “NULL” and phone numbers like “7777777777” and “999 999 9999. (“Metro Machine”) dropped all Oracle support effective on January 1. users logging into Oracle’s support system with Metro Machine’s credentials continued to download Software and Support Materials into March 2007. “tn-wts01. like the others. users purporting to represent Metro Machine logged onto Oracle’s support servers and downloaded nearly 6. Oracle has traced these illegal and unauthorized downloads to the same SAP TN IP address employed for the Honeywell downloads described above.700 distinct Software and Support Materials for which SPX had no license. Nearly 400 of those downloads related to software programs that Metro Machine had not licensed from Oracle. G. SAP TN. at SAP AG’s and SAP America’s direction. 2007 and switched to SAP TN. Metro Machine Corp. For the nine month period prior to October 2006. Over 300 distinct downloads just on November 30. users purporting to represent SPX accessed and downloaded over 8.
Defendants have violated the Computer Fraud and Abuse Act. Defendants have violated the Computer Fraud and Abuse Act. ratified it. 18 U. SAP has thereby caused significant damage to Oracle through its SAP TN subsidiary. 18 U. §§ 1030(a)(2)(C) & (a)(4) & a(5)) (By Oracle Against All Defendants) 82. in addition to the irreparable harm caused by Defendants’ unfair competition.C. § 1030(a)(5)(A)(i) by knowingly causing the transmission of a program. 28 COMPLAINT . 85. SAP has illegally converted Oracle’s former.S. trespass on Oracle’s support website.S. and by means of such conduct furthered the intended fraud and obtained one or more things of value. and with intent to defraud Oracle. information. § 1030(a)(4) by knowingly. including but not limited to Oracle’s Software and Support Materials.S. 84. or command and as a result intentionally causing damage without authorization to a protected computer owned by Oracle.S. First Claim for Relief Violation of Federal Computer Fraud and Abuse Act (18 U. accessing a protected computer. code. 83. without authorization or by exceeding authorized access to such a computer. and never disavowed it. Defendants have violated the Computer Fraud and Abuse Act.C.C.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 download scheme. and by obtaining information from such a protected computer. current. without authorization or by exceeding authorized access to such a computer. and related computer fraud. interference with Oracle’s business relationships. and prospective customers and the associated license and support revenue to artificially inflate its market share. § 1030(a)(2)(C). Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. by intentionally accessing a computer used for interstate commerce or communication. Using Oracle’s own protected property to unfairly compete against and undercut Oracle. 18 U.
recklessly or without due regard for their actions. The computer system or systems that Defendants accessed as described above constitute a “protected computer” within the meaning of 18 U. fraudulently. accessing. Defendants have violated California Penal Code § 502(c)(3) by knowingly.S. 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. in an amount well over $5000 aggregated over a one-year period. Oracle has suffered damage and loss by reason of these violations. Unless restrained and enjoined. Defendants have violated California Penal Code § 502(c)(6) by knowingly.C. programs. taking. a means of accessing Oracle’s computers. copying. Defendants’ unlawful access to and theft from Oracle’s computers also have caused Oracle irreparable injury. § 1030(g).S. 93. and without permission providing. 91. and files from Oracle’s computers.C. Penal Code § 502 (By Oracle Against All Defendants) 90. 29 COMPLAINT . Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here.C. and computer systems and other losses and damage in an amount to be proved at trial. Defendants will continue to commit such acts. 18 U. computer system.S. data. computer system. in any event. harm to Oracle’s data. § 1030(e)(2). Defendants have violated the Computer Fraud and Abuse Act. Second Claim for Relief Computer Data Access and Fraud Act . 88. and/or computer network. and making use of programs. without limitation. fraudulently. 89. or assisting in providing. Oracle’s remedy at law is not adequate to compensate it for these inflicted and threatened injuries. and without permission accessing and using Oracle’s computer services. entitling Oracle to remedies including injunctive relief as provided by 18 U. 92.Cal. including. Defendants have violated California Penal Code § 502(c)(2) by knowingly and fraudulently. causing damage to Oracle. §§ 1030(a)(5)(A)(ii) & (iii) by intentionally accessing a protected computer without authorization. 87. but. and without permission.
has no adequate remedy at law. 97. computer system. Had Defendants refrained from engaging in the unlawful and wrongful conduct described in this complaint. or causing to be accessed. Defendants have caused damage to Oracle in an amount to be proven at trial. Third Claim for Relief Intentional Interference With Prospective Economic Advantage (By Oracle Against All Defendants) 99. and due to the continuing threat of such injury. 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 incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. 95. Oracle is also entitled to recover its reasonable attorneys’ fees pursuant to California Penal Code § 502(e). Oracle has also suffered irreparable injury from these acts. Oracle owns the data that comprises the Software and Support Materials obtained by Defendants as alleged above. Oracle’s computers. Defendants have violated California Penal Code § 502(c)(7) by knowingly. 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. 96. and without permission accessing. As a direct and proximate result of Defendants’ unlawful conduct within the meaning of California Penal Code § 502. These relationships contained the probability of future economic benefit in the form of profitable support service contracts and software licenses. there is a 30 COMPLAINT .1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 94. 98. 101. fraudulently. and/or computer network. 100. Oracle is therefore entitled to punitive damages.
including. 104. Cal.S. including. 18 U. copied Oracle’s intellectual and contractual property.C. and used that property to obtain and retain Oracle’s current and prospective clients. As a result of Defendants’ acts. § 1029. loss of profits from sales or licenses to 31 COMPLAINT . receipt of stolen property. § 1962.1 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. Oracle has suffered economic harm. § 1343. conversion. fraud and related activity in connection with an access device..C. 18 U. § 1030 et seq. as alleged above. violation of RICO. wire fraud. Defendants gained unauthorized access to Oracle’s password-protected Customer Connection support website through false or improper credentials. constitutes violations of numerous state and federal statutes and codes. violation of the Federal Computer Fraud and Abuse Act. and without the cost of competing fairly by independently developing the same support materials. On information and belief.S. and conspiracy. 18 U. the above-described relationships have been actually disrupted. Defendants’ conduct also constitutes trespass to chattels. causing certain current and prospective support clients to contract with Defendants instead of Oracle for their software support and maintenance and. Defendants’ conduct was wrongful by a measure beyond the fact of the interference itself. or expanded support contracts and software licenses with Oracle rather than Defendants. 105. 18 U. 102. Penal Code § 496. This conduct. These acts were undertaken by Defendants to obtain for themselves the software support contract revenue at Oracle’s expense. but not limited to.S. and violation of the Stored Communications Act. 103. unjust enrichment. §§ 270111. and ultimately to migrate such customers away from Oracle’s software programs and onto their own. As a direct and proximate result of Defendants’ actions. unauthorized access to computers. renewed. Penal Code § 502.S. for their enterprise software. in some cases. 106. 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.C.C. 18 U. Cal. but not limited to.S.C.
renewed. 111. Unless Defendants are restrained by appropriate injunctive relief. Oracle has an expectancy in continuing and advantageous economic relationships with current and prospective purchasers and licensees of Oracle’s support services and software. 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. described above. oppressive. These relationships contain the probability of future economic benefit in the form of profitable support service contracts and software licenses. there is a substantial probability that Oracle support customers would have initiated. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. 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. Defendants’ wrongful conduct was a substantial factor in causing this harm. Instead. 108. Had Defendants refrained from engaging in the unlawful and wrongful conduct described in this complaint. as described above. they used Oracle’s Software and Support Materials to obtain and retain for themselves software 32 COMPLAINT . their actions are likely to recur and will cause Oracle irreparable injury for which there is no adequate remedy at law. was willful. Defendants’ interference with Oracle’s prospective economic advantage with its current and future customers. 107. and in conscious disregard of Oracle’s rights. Fourth Claim for Relief Negligent Interference With Prospective Economic Advantage (By Oracle Against All Defendants) 109. 110. 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. or expanded support contracts and software licenses with Oracle rather than Defendants. Defendants failed to act with reasonable care.
as alleged above. and violation of the Stored Communications Act. and used that property to obtain and retain Oracle’s current and prospective clients. 18 U.S. 117.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 support contract revenue at Oracle’s expense and without the cost of competing fairly by independently developing the same support materials. but not limited to.S. 114.C. 33 COMPLAINT . for their enterprise software. maintenance. Unless Defendants are restrained by appropriate injunctive relief.S. §§ 270111. but not limited to.C. receipt of stolen property.C. including. and software products. copied Oracle’s intellectual and contractual property. the above-described relationships have been actually disrupted. including. As a result of Defendants’ acts. § 1962. Defendants gained unauthorized access to Oracle’s password-protected Customer Connection support website through false or improper credentials. 113.. and conspiracy. 116. 18 U. This conduct. fraud and related activity in connection with an access device. wire fraud. § 1343.S. violation of the Federal Computer Fraud and Abuse Act. Defendants’ wrongful conduct was a substantial factor in causing this harm. constitutes violations of numerous state and federal statutes and codes.S. Defendants’ conduct was wrongful by a measure beyond the fact of the interference itself. § 1029. Cal. 115. unauthorized access to computers. violation of RICO. Penal Code § 496. in some cases. their actions are likely to recur and will cause Oracle irreparable injury for which there is no adequate remedy at law. Defendants’ conduct also constitutes trespass to chattels.C. 18 U. causing certain current and prospective support clients to contract with Defendants instead of Oracle for their software support and maintenance and. Cal. conversion.C. Oracle has suffered economic harm. 18 U. 18 U. loss of profits from sales to current and potential customers of Oracle support. As a direct and proximate result of Defendants’ actions. § 1030 et seq. unjust enrichment. Penal Code § 502.
Code §§ 17200. intentional interference with prospective economic advantage. Cal. unjust enrichment. and copyrighted Software and Support Materials. 121. Defendants have engaged in unlawful business acts or practices by committing acts including computer fraud. wire fraud. 18 U. all in an effort to gain unfair competitive advantage over Oracle. 34 COMPLAINT .. unlawful. The acts and conduct of Defendants constitute fraudulent. conversion. 122.C. Cal.C. 123. Defendants’ conduct constitutes violations of numerous state and federal statutes and codes. and other illegal acts and practices as alleged above. Defendants have improperly and unlawfully taken commercial advantage of Oracle’s investment in its confidential. unauthorized access to computers. 120. Penal Code § 502.Cal.C. including.S.S. violation of the Computer Fraud and Abuse Act. Bus. violation of RICO. 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. et seq. and conspiracy. 18 U. negligent interference with prospective economic advantage. In light of Defendants’ conduct. Penal Code § 496. § 1962. receipt of stolen property. interference with business relationships. and unfair competition as defined by California Bus. § 1343.C. proprietary. & Prof. 18 U. 18 U. 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. conversion. but not limited to.S. § 1029. §§ 1030 et seq.S.S. Fifth Claim for Relief Unfair Competition . 119. & Prof.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. and violation of the Stored Communications Act.C. These unlawful business acts or practices were committed pursuant to business activity related to providing business applications software and related support and maintenance for that software. 18 U. trespass. fraud and related activity in connection with an access device. §§ 2701-11. Defendants’ conduct also constitutes trespass to chattels.
Defendants should be compelled to disgorge and/or restore any and all revenues. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. Instead of paying Oracle for the use of its property. Defendants’ unfair business practices have unjustly minimized Oracle’s competitive advantage and have caused and are causing Oracle to suffer damages. Oracle has also suffered irreparable injury and. removal. including. 130. This property is the sole and exclusive property of Oracle. Oracle’s confidential. and deceptive business practices. retention. 126. including. Oracle has an exclusive right to possession and distribution of such property. whereby Oracle has no adequate remedy at law. As a result of such unfair competition. to Defendants’ copying. returning the value of the stolen property itself and any revenue earned from it. 128. but not limited to. proprietary. but not limited to. downloading. Sixth Claim for Relief Conversion (By Oracle Against All Defendants) 127. Defendants intentionally and willfully entered Oracle’s password-protected Customer Connection support website without permission and took possession of Oracle’s property. expressly or impliedly. 129. and benefits they may have obtained in violation of California Business & Professions Code § 17200 et seq. and all copies of such. which is valuable to Oracle and vital to its continued business operations. Defendants should further be ordered to return all materials taken from Oracle. earnings. custody. all of which Oracle stored on its computer system. Oracle at no time consented. or control. unfair. in their possession. 125. 35 COMPLAINT . and should be enjoined from further unlawful. profits.. compensation.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. or distribution of such property. and copyrighted Software and Support Materials. unless Defendants are enjoined from such unfair competition. will continue to suffer irreparable injury.
133.1 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. 36 COMPLAINT . Allowing Defendants to retain the benefits received as a result of their wrongful acts would unjustly benefit Defendants at Oracle’s expense. 137. 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. As a direct and proximate result of Defendants’ actions. Oracle is entitled to restitution of the Defendants’ ill-gotten gains. and other damages in an amount to be proven at trial. In addition. Oracle is entitled to damages and repossession of the converted property. profits from potential purchasers of Oracle support services and licensees of Oracle software products. Oracle had legal title to and actual possession of Customer Connection. 132. Since that time. and will continue to lose. at the latest. At all times mentioned in this Complaint. as described above. 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 is entitled to an award of the value of the property taken. or in the alternative. its access-restricted internet-based support system. In addition. or in the alternative. Defendants’ wrongful conduct was a substantial factor in causing this harm. Oracle has lost. in an amount to be determined at trial. with interest. Seventh Claim for Relief Trespass To Chattels (By Oracle Against All Defendants) 136. Defendants have been in knowing and unauthorized possession and control of such property since at least between September 2006 and the present. and the Software and Support Materials on that support system. 135. Oracle will seek its election of remedies at trial. 134. 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 recover any and all damages it sustained as a result of such trespass. and damaged. 139. as well as Defendants’ trespass on. damage to the functionality of Oracle’s computer system and data. 140. Defendants will continue to commit such acts and other competitors will be encouraged to sweep Oracle’s website. Eighth Claim for Relief Unjust Enrichment/Restitution (By Oracle Against All Defendants) 142. which took substantial time and money for Oracle to develop. Defendants unjustly received benefits at the expense of Oracle through their wrongful conduct. Defendants intentionally interfered with Oracle’s use or possession of both Customer Connection and Oracle’s related internal databases and systems. Defendants caused Oracle’s property to greatly diminish in value and deprived Oracle of the intended use of its computer systems. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 138. the integrity and functionality of Oracle’s computer system and data. and damage to the confidential and copyrighted nature of the information on Oracle’s website. Defendants continue to unjustly retain these benefits at the 37 COMPLAINT . but not limited to. As a result. Defendants’ trespass and interference proximately caused damage to Oracle. including Defendants’ interference with Oracle’s business relationships and other unfair business practices. including. potentially to the point of denying effective access to Oracle’s customers and preventing Oracle from using its systems and data for their intended purpose. Defendants’ trespass interfered with. 143. and conversion of the Software and Support Materials. damage to Oracle’s rights to dominion and control over its property. and the Software and Support Materials housed for licensed access through Customer Connection. Defendants’ trespass therefore threatens to cause irreparable harm to Oracle. 141. for which Oracle’s remedy at law is not adequate to compensate it for the injuries inflicted and threatened. computer fraud concerning. in an amount to be determined at trial.
or adopting the acts of the others. including Defendants’ interference with Oracle’s business relationships and other unfair business practices.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. damage. ratifying. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. 146. 149. oppressive. and commission of. As a direct and proximate result of the acts in furtherance of the conspiracy. The wrongful conduct committed pursuant to the conspiracy was a substantial factor in causing this harm. and conversion of the Software and Support Materials. including. It would be unjust for Defendants to retain any value they obtained as a result of their wrongful conduct. Oracle is accordingly entitled to full restitution of all amounts in which Defendants have been unjustly enriched at Oracle’s expense. loss of profits from sales to current and potential customers of Oracle support services and licenses for Oracle’s software programs. Oracle has suffered injury. that agreement and/or furthered the conspiracy by cooperating. as well as Defendants’ trespass on. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. 148. 38 COMPLAINT . and in furtherance of. and in conscious disregard of Oracle’s rights. but not limited to. loss. malicious. these wrongful acts was willful. 147. encouraging. intentionally. Defendants did the acts alleged pursuant to. Defendants’ intentional agreement to commit. and harm. 144. computer fraud concerning. Defendants willfully. Ninth Claim for Relief Civil Conspiracy (By Oracle Against All Defendants) 145. and knowingly agreed and conspired with each other to engage in the alleged wrongful conduct.
by providing substantial assistance and/or encouraging the others to act. 150. as well as Defendants’ trespass on. malicious. As fully described above. loss of profits from sales to current and potential customers of Oracle support services and licenses to Oracle software programs. Defendants’ aiding and abetting of these wrongful acts was willful.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 155. and conversion of the Software and Support Materials. and in conscious disregard of Oracle’s rights. 39 COMPLAINT . and harm. Oracle has suffered injury. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. 152. including interference with Oracle’s business relationships and other unfair business practices. 154. separately considered. oppressive. damage. Tenth Claim for Relief Aiding and Abetting (By Oracle Against All Defendants) Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. loss. including. 153. computer fraud concerning. and aided and abetted such wrongful conduct. 151. Defendants also aided and abetted the described wrongful conduct of the other Defendants by giving substantial assistance and/or encouragement that. Eleventh Claim for Relief An Accounting (By Oracle Against All Defendants) Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. was wrongful in and of itself. Defendants had full knowledge or should have reasonably known of the true nature of the wrongful conduct of each other Defendant. As a direct and proximate result of the aiding and abetting of these acts. but not limited to. The wrongful conduct aided and abetted by the Defendants was a substantial factor in causing this harm.
including data. servants. 158. (b) Improperly. Defendants have received money as a result of their misconduct. their officers. Defendants have obtained business through the use of unlawful conduct including. Oracle’s confidential. distributing. Oracle respectfully prays for the following: A. and attorneys. employees. and those in active concert or participation with any of them from: (1) accessing any Oracle restricted-access or customer website. and copyrighted 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 28 156. 157. and that some or all of such money is rightfully due to Oracle. (d) Fraudulently accessing and intentionally trespassing on Oracle’s password-protected Customer Connection website. agents. for the purpose of sabotaging Oracle’s ability to do business and compete in the market. (2) selling. proprietary. Oracle is entitled. or using any property obtained from Oracle’s website. and. Prayer For Relief WHEREFORE. in furtherance of their unlawful and deceptive scheme as described above. proprietary. at Oracle’s expense. and copyrighted Software and Support Materials. (c) Willfully converting Oracle’s confidential. to a full accounting. internal documents. without Oracle’s authorization. including without limitation. and valuable 40 COMPLAINT . without authorization or consent. Since at least September 2006. and unlawfully taking commercial advantage of Oracle’s investment in its Software and Support Materials. For a preliminary and permanent injunction restraining Defendants. 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. but not limited to: (a) Intentionally and/or negligently interfering with Oracle’s prospective economic advantage with its existing and potential customers. therefore. including without limitation the Customer Connection website.
H. fixes. proprietary. For an accounting. 41 COMPLAINT For damages to be proven at trial. For prejudgment interest. and copyrighted Software and Support Materials. proprietary. J. including data. and copyrighted Software and Support Materials. and other computer code. patches. on the basis of their willful and deliberate unauthorized computer access. internal documents. downloading or copying property from Oracle’s website without Oracle’s authorization. aiding and abetting and conspiracy. B. including data. and valuable updates. but not limited to Oracle’s confidential. For an Order directing Defendants to return Oracle’s property. and other computer code. setting forth in detail the manner and form in which Defendants have complied with the injunction. including. without limitation. fixes. Court deems just and proper. For restitution and disgorgement of all ill-gotten gains unjustly obtained and retained by Defendants through the acts complained of here. and other computer code. I. fixes. that Defendants took from Oracle. intentional interference with Oracle’s prospective economic advantage. D. Oracle’s confidential.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 updates. internal documents. patches. F. That the Court order Defendants to pay Oracle punitive damages in a sum to be determined at trial. patches. C. 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. (4) otherwise engaging in acts of unfair competition and interference with Oracle’s business relationships. For an Order awarding Oracle its attorneys’ fees and costs. For an Order awarding Oracle such other and further relief as the . G. K. as set forth in this Complaint. under oath. and valuable updates. and. (3) removing. including.
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