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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 email@example.com firstname.lastname@example.org email@example.com firstname.lastname@example.org 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 email@example.com firstname.lastname@example.org
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
this user information did not match anything: it was fake. Oracle’s server logs have recorded access through this same IP address by computers labeled with SAP identifiers using SAP IP addresses. Texas. 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. SAP employees used the log-in IDs of multiple customers. the access originated from an internet protocol (IP) address in Bryan. an SAP America branch office location and home of its wholly-owned subsidiary SAP TN.com” and fake phone numbers such as “7777777777” and “123 456 7897. or 4 COMPLAINT . Oracle has found many examples of similar activity. 8. Across its entire library of Software and Support Materials in Customer Connection.” In other cases. SAP TN is a company that purports to provide technical support services on certain versions of Oracle’s PeopleSoft and JDE software programs. some users logged in with the user names of “xx” “ss” “User” and “NULL.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. All of these customers whose IDs SAP appropriated had one critical fact in common: they were. Employing these techniques. The Bryan. Rather. combined with phony user log-in information. and phone number) that did not match the customer at all. 7. SAP blended log-in information from multiple customers with fake information. 9. In many instances.” Others used phony email addresses like “test@testyomama. Texas IP address used to access and download Oracle’s Software and Support Materials is connected directly to SAP’s computer network. In some cases. to gain access to Oracle’s system under false pretexts. like Metro Machine Corp. one user name connected to an SAP IP address appears to have logged in using the credentials of seven different customers in a span of just 15 days – all from SAP computers in Bryan. For example. This systematic theft of Oracle’s Software and Support Materials did not originate from any actual customer location. These “customer users” supplied user information (such as user name. For example. Indeed. and downloaded Software and Support Materials even after the customer had dropped its support rights with Oracle. email address.. Texas. Oracle to date has identified more than 10. including the ones described above.
SAP AG’s hasty acquisition of SAP TN was widely perceived as a response to the new competitive threat from Oracle. increasing Oracle’s potency as a competitor to SAP AG for enterprise applications software. As explained below. SAP AG acquired 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 were just about to become. in 2003. * 11. SAP AG spokesman Bill Wohl vowed that SAP AG would use SAP TN to “keep the pressure on 1 “JDE” refers to J. Oracle officially became a player on SAP’s turf. consulting. Not by coincidence. and (c) support contracts to keep the software updated and upgraded. through SAP America. copyrighted Software and Support Materials. 1 ranked SAP. and support. Oracle had previously announced that in January 2005 it would complete its acquisition of PeopleSoft. called Project Fusion.” Another mused.” 13. SAP’s own statements confirmed it. * * In the world of enterprise software applications. 12. Industry observers noted this fundamental shift in the competitive landscape. “After the acquisition of PeopleSoft earlier this year. revenue comes from three basic activities: (a) license of the underlying software. Edwards World Solutions. SAP apparently has now warehoused an extensive library of Oracle’s proprietary. As a result of this illegal activity. a software company acquired by PeopleSoft. aimed at taking market share from No. “Oracle Corp.D. One industry analyst stated that. and support technicians. 10. this theft appears to be an essential – and illegal – part of SAP’s competitive strategy against Oracle. Oracle said it has thousands of developers building the new application suite. developers. In January 2005. (b) consulting relating to the implementation and operation of the software. 5 COMPLAINT . Inc. an independent software support company founded by former PeopleSoft software engineers. is developing a ‘super set’ of applications. new customers of SAP TN – SAP AG’s and SAP America’s software support subsidiary whose sole purpose is to compete with Oracle. 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.
15. following: · More than 10. Publicly. much less the 50% discount promoted by SAP. SAP advertised this strategy as its “Safe Passage” program. SAP TN’s services “form[ed] the basis of [SAP AG’s] Safe Passage initiative.” 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.” In connection with the SAP TN acquisition.” and a sign that “SAP has taken the gloves off. SAP TN did not appear to have the development capability to meet the support commitments advertised in the “Safe Passage” brochures at any price. or the day of. by way of example. the . As reported in industry publications. Indeed. committed to throw “a lot of additional resources” behind SAP TN (which consisted of only 37 employees in total).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. It certainly did not match Oracle’s investment in development resources. explicitly designed to transition customers away from Oracle products and onto the SAP software platform. SAP appeared to focus more on growing the SAP TN sales force rather than investing in or expanding SAP TN’s tiny development team. SAP America’s CEO. · A systematic pattern of “sweeping” Oracle’s Customer Connection support website from SAP TN servers just days before.000 illicit downloads from Customer Connection between September 2006 and January 2007. Nevertheless. the 6 COMPLAINT SAP’s unlawful copying and theft includes. 14. or even come close to it. 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].” Although SAP America President and CEO. Bill McDermott. industry observers deemed the “Safe Passage” program “measurably more aggressive. 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. Bill McDermott. with indications that this number may go significantly higher if traced further back in time. SAP stole much of the Software and Support Materials directly from Oracle.
Oracle has no adequate remedy at law for the harm threatened and caused by these acts. 7 COMPLAINT . and its customers. the indiscriminate. · The improper access to. and deceptive business practices that continues to this day.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. · On multiple occasions. expiration of a new SAP TN customer’s support contract with Oracle. wholesale copying of vast libraries of available Software and Support Materials from Oracle’s Customer Connection support website through downloads too rapid to permit any real-time use of the downloaded Software and Support Material. to try to “keep the pressure on Oracle. and theft of.” SAP has been engaged in a systematic program of unfair. or in some cases on behalf of former Oracle customers with no access rights to Oracle’s Software and Support Materials whatsoever. its many employees. In short. SAP has taken Oracle’s Software and Support Materials and apparently used them to insinuate itself into Oracle’s customer base. authorized customers or through normal access to Oracle’s Customer Connection system. unlawful. clearly-marked internal proprietary Oracle support documents not available even to licensed. Through its illegitimate and illegal business practices. in the purported name of customers that had never licensed those products and had no legal access to them. and to attempt to convert these customers to SAP software applications. · Accessing and downloading Software and Support Materials across multiple product lines in multiple lines of business available on the Customer Connection support website. 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. These illegal business practices threaten to cause irreparable harm to Oracle.
State of California. Germany. with its principal place of business in Redwood City. County of San Mateo. 20. 23. with its only place of business in Redwood City. 8 COMPLAINT . 21. State of California. Oracle Corporation is a Delaware corporation with its principal place of business in Redwood City. Directly and through its subsidiaries. County of San Mateo. 19. SAP America is a wholly-owned subsidiary of SAP AG. Texas. 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. Oracle USA is the successor to PeopleSoft USA. SAP America is a Delaware corporation with its principal place of SAP AG is a German corporation with its principal place of business in business in Newtown Square. Oracle Corporation and Oracle USA are authorized to license to end users the copyrighted computer software programs and other works at issue in this action. The corporate relationship of the three named defendants is set forth in the chart below.. Oracle USA is a Colorado corporation duly authorized to do business in the State of California. County of San Mateo. Inc. SAP TN is a wholly-owned subsidiary of SAP America. OIC is the owner of the copyrights at issue in this action. SAP TN is a Texas corporation with its principal place of business in Bryan. 18. Pennsylvania. Oracle Corporation and Oracle USA are the licensees of the copyrights at issue in this action. (“PeopleSoft”) and JDE. THE PARTIES 17. Oracle USA develops and licenses database and applications software programs and provides related services. 22. Oracle Corporation develops and licenses database and applications software programs and provides related services around the world. OIC is a California corporation duly authorized to do business in the State of California. Walldorf.
By way of example only.S.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24. each of the Defendants. partnership. 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. including Does 1 through 50. Oracle will amend this Complaint to allege their true names and capacities when ascertained. Subsidiary) Oracle is currently unaware of the true names and capacities of Does 1 through 50. 25. whether individual. and support customers in California and in this judicial district. specifically in this judicial district. representative. inclusive. SAP AG had both the right and the authority to control the actions of both corporations. Subsidiary) SAP TN (Wholly-owned U. unincorporated association. and therefore sues these defendants by such fictitious names. service. SAP America had both the right and authority to control the actions of SAP TN. sell. servant. or co-conspirator of the others. promote. had full knowledge of and gave substantial 9 COMPLAINT . 26. parent. and specifically this judicial district. through its 100% ownership of both SAP America and SAP TN. Similarly. At all material times. through its 100% ownership of SAP TN. at all material times. SAP America and SAP TN advertise. subsidiary. license. and finances the sales and promotional activities of both SAP America and SAP TN throughout the United States and in California. SAP AG (German Parent Corporation) SAP America (Wholly-owned U. was the agent. partner. SAP AG also holds an annual meeting of its Board of Directors in Palo Alto. corporation. 27. Defendants all are doing business in and/or have directed their activities at California. California. employee. joint venturer. SAP AG negotiates and enters into software license and support agreements directly within the United States and.S. At all material times. alter ego. or otherwise. affiliate.
S. a substantial part of the property that is the subject of the action is situated in this district.C. § 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. VI. or conspiracy. joint venture. Assignment is proper in this division under Civil L.S. Venue in this district is appropriate.C. and the Court will have subjectmatter jurisdiction over those claims pursuant to 28 U. §§ 1030 et seq.. Oracle’s Software and Support Materials 32. §§ 101. partnership. employment. and this Court has subject-matter jurisdiction over this action pursuant to 18 U. JURISDICTION 28. This Court has supplemental subject matter jurisdiction over the pendent state law claims under 28 U. § 1338. pursuant to 28 U. 17 U. Oracle’s first cause of action arises under the Computer Fraud and Abuse Act.D. 18 U.S. Oracle is the world’s largest enterprise software company. FACTUAL ALLEGATIONS A. V.S.S.S.R.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. each was acting within the scope of such agency. because a substantial part of the events giving rise to the dispute occurred in this district. 3-2 (c) and (d). and in doing the things alleged. 29. § 1331. In addition. representation.C. and each is legally responsible for the acts and omissions of the others. III. VENUE 30. Oracle will seek to amend this Complaint to add claims for copyright infringement under the Copyright Act.C.S. 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.C.C. § 1391. et seq. INTRADISTRICT ASSIGNMENT 31. affiliation. IV. Power & Associates’ global certification for outstanding service and support based 10 COMPLAINT .. service. § 1030(g) and 28 U. and the Court has personal jurisdiction over each of the parties as alleged throughout this Complaint. and the first to receive J. when the relevant copyright registrations issue.
press releases. and (3) no modifications of any Documents are made. 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. agree to additional legal restrictions. 13 COMPLAINT . In addition. such as a Software Application Request (“SAR”) through the SAR Search Web Application. product or upgrade announcements. Any reproduction or redistribution of the Software not in accordance with the License Agreement is expressly prohibited. 42.1 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. (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. 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”). provided that (1) the below copyright notice appears in all copies and that both the copyright notice and this permission notice appear. The Software is made available for downloading solely for use by licensed end users according to the License Agreement and any reproduction or redistribution of the Software not in accordance with the License Agreement is expressly prohibited. WITHOUT LIMITING THE FOREGOING. These terms notify the user that the software available to download from Oracle is Oracle’s copyrighted material. users accessing specific materials.” To download a SAR. COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. datasheets and FAQs) from this server (“Server”) is granted. The terms further provide that the “software is part of the Licensed Products under the License Agreement” and “is made available for downloading solely for use by licensed end users according to the License Agreement. 41. software action requests. The Legal Download Agreement further restricts use of documents downloaded from the website: Permission to use Documents (such as white papers. the user must click on a button indicating that it accepts these terms. Use for any other purpose is expressly prohibited.
Oracle would “not [be] a competitor which could really hurt us.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. Not only do many SAP AG customers use Oracle’s superior database software programs. broader product line of enterprise applications software programs to compete against SAP AG. One way was to hit at Oracle’s customer base – and potentially increase its own – by acquiring and bankrolling a company that claimed the ability to compete with Oracle support and maintenance services on Oracle’s own software products. how the nearly 50. As SAP AG reeled. 45. and geographic and product scope. the combination revitalized Oracle overnight as a competitor in the business software applications business. testified on June 23. but now Oracle offered a deeper. Rather than improve its own products and offerings. SAP AG instead considered how to undermine Oracle. Richard Knowles.000 business applications software customers throughout the world. 2004 at the trial on the Department of Justice’s unsuccessful effort to block Oracle’s acquisition of PeopleSoft.000-strong combined workforce of Oracle and PeopleSoft would provide unparalleled innovation and support to 23. 14 COMPLAINT . On January 7. 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. 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. or intellectual property rights to. events unfolded at a rapid pace: eleven days after its announcement. Oracle Threatens To Unseat SAP 43.” After the merger. size.000 people joining by Webcast and phone. SAP AG CEO Henning Kagermann claimed that even with PeopleSoft. despite not owning any of the software code for. But SAP AG had no answer for the business proposition the new Oracle offered. 44. these same products. SAP AG suddenly found itself in a far different competitive environment than the one in which it had grown comfortable. he even claimed to wish Oracle “good luck” in competing with SAP AG. 46. 2005. As SAP America’s Vice President of Operations. Oracle launched the newly-united company and unveiled. at its headquarters with more than 48.
Acquiring SAP TN was not a mere investment by SAP AG. SAP Responds To Oracle Competition With Its “Safe Passage” Scheme 48.” D. by providing low-cost maintenance and support services to PeopleSoft and JDE customers running assorted versions of these software programs. headquartered in Bryan. Texas and founded by former PeopleSoft employees. JDE. 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. and later. just weeks before Oracle would close the PeopleSoft acquisition.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 observer put it. and to use SAP TN to do it. SAP AG proposed to buy SAP TN outright and make it a wholly-owned – and wholly-beholden – subsidiary. SAP TN 47. SAP TN would eventually lose its customer base. 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. but – with the Oracle/PeopleSoft 15 COMPLAINT . To retain full control over every detail of its scheme to lure away customers from Oracle. but a calculated competitive move. however. SAP TN president Andrew Nelson got “the magic phone call” from Jim Mackey. So SAP AG had to make the price right. because to the extent SAP AG successfully undermined Oracle by having its customers move from Oracle’s software to SAP AG’s software.” Mackey made Nelson an offer “he couldn’t refuse.” 49. SAP AG’s “front man for SAP AG’s mergers and acquisitions strategy. often outdated. As described in a glossy spread in a leading industry publication. In December 2004. SAP TN was a small software services company.” Aligning with SAP AG made little sense for SAP TN. in December 2004. It claimed to compete with PeopleSoft. Oracle. it instead focuses on simply keeping the software up and running for an annual fee. 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. As one industry journalist explained. SAP AG has refused to disclose the terms of its SAP TN purchase. SAP AG bought “another arrow in its quiver to hunt after Oracle’s customers.
In April 2005. SAP would aggressively campaign to migrate those customers to an SAP enterprise software platform.” And SAP TN certainly knew its role was to achieve SAP AG’s ends: as SAP TN’s CEO. SAP AG would try to use SAP TN as a means of “speeding-up” the migration of PeopleSoft and JDE users to SAP platforms. SAP would offer cut-rate pricing combined with the promise of essentially unlimited future support to former PeopleSoft and JDE support customers.” The Senior Vice President and Chief Operating Officer of SAP Asia Pacific. SAP TN’s new parent companies directed it to begin to implement a two-phase plan to increase SAP’s enterprise application market share. in connection with converting Oracle customers to SAP support (via SAP TN). at the SAP AG annual meeting. SAP America’s CEO. Bill McDermott. to lure the support business over. As SAP AG Managing Director Alan Sedghi admitted. admitted that the SAP TN acquisition was “an integral part” of SAP’s Safe Passage program. First. SAP AG’s top executives unveiled SAP AG’s acquisition of SAP TN as the centerpiece of its new “Safe Passage” scheme.” A month later. SAP AG’s CEO. After the acquisition. The CEOs stated the proposition more bluntly. On January 19. SAP America CEO Bill McDermott claimed “The SAP Safe Passage offering gives companies an affordable way to protect their current investments.” 16 COMPLAINT . ease integration with SAP NetWeaver(TM) and begin the process of innovating their businesses today. Colin Sampson. stated.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. Second. identified SAP TN as instrumental to the parent company’s “Safe Passage” program.” 51. publicly indicating that SAP TN was authorized and intended to implement SAP AG’s goals. 52. Andrew Nelson. Henning Kagermann. We want them to be successful. 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. which in turn was part of SAP’s “ongoing strategy to compete with Oracle. SAP TN agreed to the deal and cast its lot with SAP AG. 2005. publicly vowed to bankroll this effort to undermine Oracle by putting “a lot of additional resources into TomorrowNow. in barely a month. 50. “We're owned by SAP.
SAP AG’s “second wave” included “an intensive customer recruitment campaign. To implement Phase Two of its plan (luring Oracle customers to the SAP enterprise software platform). 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. the SAP AG sales personnel would pressure the customers to drop Oracle products outright in favor of SAP AG’s suite. SAP provides solutions. SAP sales representatives unleashed a torrent of marketing materials designed to exacerbate and leverage perceived. offering significantly lower cost maintenance alternatives to Oracle customers running PSFT/JDE solutions” through 70.” To exploit the fear it intended to create. As reflected on SAP AG’s website: “SAP offers Safe Passage for PeopleSoft. consider another option: SAP. JD Edwards. 17 COMPLAINT . Beginning in January 2005.” (emphasis supplied) SAP America’s website promises that “SAP and TomorrowNow can cut your maintenance costs by as much as 50% through 2015. it took a hands-on approach. SAP AG offered maintenance support through SAP TN. These lower cost alternatives advertised by SAP AG were to come directly through SAP TN.” and elsewhere says that “Safe Passage maintenance and support are delivered worldwide through TomorrowNow.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.” 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. SAP implemented Phase One immediately. quality support from Oracle. officially “bundled” with SAP AG enterprise software as a centerpiece of the Safe Passage program. and Siebel customers – If Oracle’s options have you worried. It deployed its salespeople to contact potential customers and push them to switch to SAP TN’s services.000 direct mail solicitations to Oracle customers. PeopleSoft and JDE customer uncertainty about the prospects for long-term. 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 give teeth to these commingled sales efforts. 55. Instead. albeit unfounded.
curiously. SAP executives touted the Safe Passage program’s limited success in its first year. including through its September 12. companies and corporate cultures. SAP AG CEO Henning Kagermann conceded that SAP had lost as much as 2% market share to Oracle. SAP AG’s President of Customer Solutions and Operations. boasted that Safe Passage “continues to do really well.com after Oracle’s announcement of its impending Siebel acquisition. SAP AG boasted in a press release that more than 200 customers had signed up for Safe Passage. 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 announced it would extend its Safe Passage program to Siebel customers. SAP AG’s CEO.” SAP’s “cheaper price” (referred to elsewhere as “cut rate” support) continued at “50 cents on the dollar for maintenance fees. and which it claimed “offers companies SAP solutions.” 57. By March 2006.1 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. round the clock Siebel code support within a few weeks of Oracle’s acquisition announcement remained a mystery. that it will offer technical support for more of rival software maker Oracle Corp.’s own products [the Siebel products] for a far cheaper price. and more aggressive. investment protection and a clear road map to the next generation of business software. At the same time. By July 2006.” including because SAP AG “extended the program in order to offer it as well to Siebel 18 COMPLAINT . However. technology. maintenance services. SAP grew more desperate.” How SAP could offer instantaneous. . “SAP AG plans to announce . In a July 2006 earnings call.” but its services were expanded to support more Oracle product lines and a wider range of customers. confirmed that SAP intended to use the Siebel acquisition as another opportunity to lure Oracle customers to SAP stating that SAP is “not distracted by the challenges of integrating multiple code bases. As reported on Forbes. Léo Apotheker. . the program it implemented partly through SAP TN. SAP AG continued to tout the success of Safe Passage. SAP America President and CEO. 2005 announcement that it would acquire Siebel Systems. 58. Bill McDermott. Henning Kagermann. promised SAP AG would use SAP TN and the Safe Passage program to “fight for” more customers. as Oracle continued to take market share and expand its product offerings. In October 2005.
optimally functioning Oracle software. Oracle has now solved this puzzle.” By extending the Safe Passage program to Siebel customers.000 software and support engineers to create and help implement the code fixes. A Deal Too Good To Be True 59. without infringing on Oracle’s intellectual property.” E. Oracle. and in conjunction with opening new SAP TN offices around the world. To compound the puzzle. Apotheker claimed that SAP now had “a global network of [SAP TN] capabilities” – enough to “gain significant traction.” “full upgrade script support. F. It was not clear how SAP TN could offer. simply did not add up. could actually develop and offer the hundreds of regulatory updates. The economics. bug fixes. as it did on its website and its other 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 customers. 24x7x365” on software programs for which it had no intellectual property rights. The SAP Solution: Stolen Passage 1. patches.” “fixes for serious issues. most remarkably. and updates that comprise the advanced support services required by Oracle’s licensed customers. To stave off the mounting competitive threat from Oracle. by comparison. 62. Although SAP put a brave face on its ability to compete with the increasingly potent Oracle applications offerings. 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 . 60. SAP continued to offer this comprehensive support to hundreds of customers at the “cut rate” of 50 cents on the dollar. some industry analysts wondered whether a small company like SAP TN. even after having expanded its ranks to 150 employees. SAP unlawfully accessed and copied Oracle’s Software and Support Materials. and other labor-intensive support items that a customer would need to maintain useful. “30-minute response time. maintains a development force of more than 15. Oracle Finds A Suspicious Pattern To analyze and improve on its industry leading support services. patches. “customized ongoing tax and regulatory updates. and purported to add full support for an entirely different product line – Siebel – with a wave of its hand. and the logic. 61.” and.
authorized use of Customer Connection. a user purporting to be that customer. including dozens. Oracle discovered a pattern. 2. these clicks could not reflect real responses from any human customers actually reading the solutions they had accessed. 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. or thousands of products beyond the scope of the specific customer’s licensed products and permitted access. 64. unexplained spikes in the number of customers on the online support website who had clicked the “No. These clicks numbered in the thousands for several customers. And. would access Oracle’s system and download large quantities of Software and Support Materials. Some of these apparent customer users even downloaded materials after their contractual support rights had expired. over and over again. Oracle soon discovered that many of these “customers” had taken massive quantities of Software and Support Materials beyond their license rights. Instead. to take a copy of them all. 20 COMPLAINT . continue search” option. 63. In late 2006. In the course of this investigation. and Oracle discovered that each response – each answer by users pretending to be the customer – occurred in a matter of seconds or less. Oracle noticed huge. apparently. with the aim of continually improving the support system for customers.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 customer’s problem. Frequently. continue search” option. Oracle regularly compiles this data to assess whether its system helped customers resolve their support issues. If the customer selects the “No. hundreds. in the month before a customer’s Oracle support expired. the support system responds by offering the customer further options. Indeed. employing the customer’s log-in credentials. 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. Given the extreme speed at which the activity occurred. Oracle also discovered that the downloaded Software and Support Materials included internal documents not available even to licensed customers and not available through normal. 65.
President and CEO. V. including: (1) Andrew Nelson. for third party use. JDE. relicense.D. · Not to directly or indirectly. SAP TN’s management. · Not to access the customer support system if it is not the customer’s authorized and designated Oracle technical support contact. · 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. and a significant number of its employees. In addition. or third party training. who is reflected as the person performing many of the downloads at issue. V. and (6) Shelley Nelson. SAP TN has intimate familiarity with these important restrictions and conditions relating to Oracle’s Software and Support Materials. · That the Materials on the support website are confidential information subject to existing confidentiality agreements. sublicense. six list prior employment experience with PeopleSoft. V. Of SAP TN’s tenmember management team. · Not to use the Materials on the support website except in support of the customer’s authorized use of the Oracle Programs for which the customer holds a supported license from Oracle.P. appear to have applied their familiarity with the Customer Connection website to directly participate in and perfect the illegal 22 COMPLAINT . former PeopleSoft employees who work for SAP.P. Edwards Support. V. disclose. International Sales. (4) Mel Gadd. rent. North American Sales.P. (5) Nigel Pullan. or 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 70. Global J. or any portion thereof.P. Global PeopleSoft Support. V. distribute. Quality. such as Wade Walden. · That the customer username and password are for the customer’s sole use in accessing this support server. or lease the Software or Documentation. formerly worked at PeopleSoft and JDE. (3) Laura Sweetman. (2) Bob Geib. use.
C. By way of example 24 COMPLAINT .C. 74.. and taking from. Accordingly. Distribution & Auto Service. 75.. SAP TN’s acts violated Oracle’s exclusive rights to use. Honeywell International. Laird Plastics. offer for sale. and impose strict confidentiality requirements.V.. reproduce. including without limitation.S. SAP TN reviewed and agreed to the terms and conditions on Oracle’s support website before proceeding.S. §§ 101 et seq. Stearns & Co. and in conscious disregard of Oracle’s protected intellectual property and the integrity of its computer systems. SPX Corporation. create derivative works. Berri Limited. S. Such acts constitute copyright infringement under 17 U. Oracle’s Customer Connection website is too pervasive. Caterpillar Elphinstone. Herbert Waldman.. Interbrew UK. Smithfield Foods. AbitibiConsolidated. B. § 506. Helzberg Diamonds. § 501 and also willful and intentional copyright infringement under 17 U. display. to comprehensively detail here. Mortice Kern Systems. 4. National Manufacturing.S. Inc. publish.. Specific Examples Of SAP TN’s Unlawful Customer Downloads SAP TN’s improper access to. 17 U. Stora Enso. Texas Association of School Boards. Metro Machine Corp. and distribute these works. Grupo Costamex. Ronis. Bear. 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 covers too many individual violations.C. Merck & Co. 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. and Yazaki North America. and therefore committed its theft knowingly and intentionally. Border 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. Fuelserv Limited. OCE Technologies. Oracle has uncovered unlicensed downloads linked to SAP TN on behalf of numerous customers. With literally thousands of software programs available for licensing.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 support only for products that a company has licensed. Abbott Laboratories. Inc..A. NGC Management Limited.. VSM Group AB.
Merck. users purporting to be “Merck” logged into the Oracle support system and downloaded over 9. the unauthorized downloads did not stop there.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. 2007. 2007 and nearly 400 more the next day. 76. one of the largest pharmaceutical companies in the world. Merck & Company. after switching to SAP TN. This unlawful downloading even stretched across product families. Over 2. 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. Honeywell. licenses and receives support for many Oracle software products. Merck’s support rights for its JDE software products expired on January 1. Most of these excessive downloads came during the course of four days. Wade Walden – a former PeopleSoft employee now employed by SAP. Oracle sets forth below illustrative instances of SAP TN’s illegal conduct regarding a few of its customers.000 Software and Support Materials in less than two weeks in January 2007. “Honeywell” downloaded over 450 distinct unlicensed solutions on January 16. but Oracle discovered users downloading JDE products with Honeywell’s credentials. Users logging into Oracle’s support system with Merck’s credentials continued to download Software and Support Materials into March 2007. In the three months prior to that date. More than 5. 25 COMPLAINT . Honeywell International (“Honeywell”) is listed on SAP TN’s website as a client. during which “Honeywell” was downloading almost 1800 solutions per day. Then. (“Merck”). In one specific library containing solutions for Enterprise One software. Honeywell used and licensed PeopleSoft software applications. But. In the approximately three and a half year period before Honeywell switched to SAP TN. it averaged just over 20 downloads of Software and Support Materials per month. Inc.000 of the Software and Support Materials taken in this period were solutions that Honeywell was not licensed to take at all.000 of these downloads related to JDE software products for which Merck had no license. Oracle subsequently connected many of the illegal downloads to an SAP TN IP address and to SAP TN’s employee. Many of these “Merck” downloads came directly from an IP address in Bryan.000 distinct Software and Support Materials for JDE software. a user employing Honeywell’s log-in ID downloaded over 7. 77.
SAP TN users logged into Oracle’s support system using OCE’s credentials (and. and could serve no legitimate or lawful business purpose. Homebuilder Management.” Neither Merck nor SAP TN had any license. In the months leading up to the expiration of OCE’s support rights for its Oracle products.” and phone numbers such as “4444444444” and “999 999 9999. including specifically to a computer with SAP TN’s initials in the title.V. and some were traced to a computer with SAP TN’s initials in the title. users employing OCE’s credentials downloaded a large number of Oracle products relating to US Payroll. using names such as “xx” “ss” and “NULL. (“OCE”) is located in the Netherlands and appears as a customer on SAP TN’s website.” Similar to the other customer examples. in some cases. or other right to access and download these 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 Texas that belongs to SAP TN. Like the other companies. OCE-Technologies B. and Real Estate Management – none of which make sense coming from a European customer in support of its European business. authorization.” In many cases. and neither OCE nor SAP TN have any license. many of these “OCE” users entered phony identification information. “TN-DL03. SAP TN users employed fake identification information to download the Software and Support Materials.” 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. since OCE does not run many of the software programs to which these downloads relate. “TNL-02. These downloads included over 3. There is little chance that SAP TN intended OCE as the beneficiary of these massive sweeps. these illegal downloads are associated with the same IP address belonging to SAP TN in Bryan. OCE. false user names) and downloaded over 12.000-plus unlicensed Software and Support Materials from Oracle. 26 COMPLAINT . authorization or other right to access and download the 5. From December of 2006 to January of 2007.000 distinct Software and Support Materials. Canadian Payroll. such as the name “user” and phone numbers such as “123 456 7897.” and even “xxx xxx xxxx. Texas.000 distinct items for which OCE had no license.” “9999999999. 78.
These SPX downloads included over 1. but used fake identification information like the name “NULL” and phone numbers like “7777777777” and “999 999 9999. In the month before Metro Machine dropped its support rights with Oracle. SPX. Metro Machine. SPX averaged approximately eleven downloads per month from Oracle’s support system. Metro Machine Corp. as reflected on SAP TN’s website. like the others. SPX Corporation (“SPX”) dropped all Oracle support on December 10.700 distinct Software and Support Materials for which SPX had no license. 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. (“Metro Machine”) dropped all Oracle support effective on January 1. Then.” Many of these SPX downloads. 2006 and became an SAP TN customer. Over 300 distinct downloads just on November 30.” 80. SAP Adds The Ill-Gotten Gains To Its Coffers 81. at SAP AG’s and SAP America’s direction.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 79. Nearly 400 of those downloads related to software programs that Metro Machine had not licensed from Oracle. these users logged in using SPX credentials. SAP TN now claims to have delivered thousands of fixes and more than 800 tax and regulatory updates to Oracle’s former customers. SAP AG and SAP America directed this 27 COMPLAINT . and some were traced to a computer with SAP TN’s initials in the title. Not coincidentally. users logging into Oracle’s support system with Metro Machine’s credentials continued to download Software and Support Materials into March 2007. users purporting to represent SPX accessed and downloaded over 8. “tn-wts01. 2006 were Software and Support Materials related to unlicensed Payroll software. SAP TN. In some cases. between October and December 2006.000 distinct Software and Support Materials. illegally downloaded thousands of fixes and updates from Oracle’s restricted customer support website.000 distinct Oracle Software and Support Materials (far more than SPX could legitimately access or use). G. For the nine month period prior to October 2006. originated from the same IP address belonging to SAP TN. 2007 and switched to SAP TN. listed on its website. In addition.
including but not limited to Oracle’s Software and Support Materials. and by obtaining information from such a protected computer.C. First Claim for Relief Violation of Federal Computer Fraud and Abuse Act (18 U. and by means of such conduct furthered the intended fraud and obtained one or more things of value.C. and prospective customers and the associated license and support revenue to artificially inflate its market share. and related computer fraud. 84. 28 COMPLAINT . trespass on Oracle’s support website. § 1030(a)(2)(C). Defendants have violated the Computer Fraud and Abuse Act. code.S. §§ 1030(a)(2)(C) & (a)(4) & a(5)) (By Oracle Against All Defendants) 82. ratified it.S. by intentionally accessing a computer used for interstate commerce or communication. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here.S. without authorization or by exceeding authorized access to such a computer. in addition to the irreparable harm caused by Defendants’ unfair competition. 83. § 1030(a)(5)(A)(i) by knowingly causing the transmission of a program. Defendants have violated the Computer Fraud and Abuse Act.C. interference with Oracle’s business relationships. current. 85. without authorization or by exceeding authorized access to such a computer. SAP has thereby caused significant damage to Oracle through its SAP TN subsidiary. SAP has illegally converted Oracle’s former. accessing a protected computer.S. and never disavowed it. 18 U. 18 U. Defendants have violated the Computer Fraud and Abuse Act. information. 18 U. or command and as a result intentionally causing damage without authorization to a protected computer owned by Oracle. and with intent to defraud Oracle. Using Oracle’s own protected property to unfairly compete against and undercut 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 download scheme.C. § 1030(a)(4) by knowingly.
Cal.C. Defendants have violated the Computer Fraud and Abuse Act. § 1030(g). §§ 1030(a)(5)(A)(ii) & (iii) by intentionally accessing a protected computer without authorization. computer system. Oracle’s remedy at law is not adequate to compensate it for these inflicted and threatened injuries.S. computer system. without limitation. 92. in any event. Penal Code § 502 (By Oracle Against All Defendants) 90. accessing.C. 91. entitling Oracle to remedies including injunctive relief as provided by 18 U. 18 U. Second Claim for Relief Computer Data Access and Fraud Act .C. and computer systems and other losses and damage in an amount to be proved at trial. in an amount well over $5000 aggregated over a one-year period. 88. data. causing damage to Oracle. and without permission accessing and using Oracle’s computer services.S. copying. fraudulently. Oracle has suffered damage and loss by reason of these violations. Defendants will continue to commit such acts. recklessly or without due regard for their actions.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. a means of accessing Oracle’s computers. Defendants’ unlawful access to and theft from Oracle’s computers also have caused Oracle irreparable injury. Unless restrained and enjoined. 93. fraudulently. and making use of programs. 29 COMPLAINT .S. or assisting in providing. 89. and files from Oracle’s computers. Defendants have violated California Penal Code § 502(c)(6) by knowingly. including. and without permission. and/or computer network. Defendants have violated California Penal Code § 502(c)(2) by knowingly and fraudulently. 87. Defendants have violated California Penal Code § 502(c)(3) by knowingly. § 1030(e)(2). programs. and without permission providing. taking. harm to Oracle’s data. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. The computer system or systems that Defendants accessed as described above constitute a “protected computer” within the meaning of 18 U. and/or computer network. but.
Defendants have violated California Penal Code § 502(c)(7) by knowingly. 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 94. 96. there is a 30 COMPLAINT . Third Claim for Relief Intentional Interference With Prospective Economic Advantage (By Oracle Against All Defendants) 99. has no adequate remedy at law. and due to the continuing threat of such injury. Oracle is also entitled to recover its reasonable attorneys’ fees pursuant to California Penal Code § 502(e). computer system. Oracle is informed and believes that the aforementioned acts of the Defendants were willful and malicious in that Defendants’ acts described above were done with the deliberate intent to injure Oracle’s business and improve its own. 95. Oracle has also suffered irreparable injury from these acts. 100. 98. Oracle is therefore entitled to punitive damages. or causing to be accessed. As a direct and proximate result of Defendants’ unlawful conduct within the meaning of California Penal Code § 502. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. Had Defendants refrained from engaging in the unlawful and wrongful conduct described in this complaint. fraudulently. entitling Oracle to injunctive relief. and without permission accessing. Oracle owns the data that comprises the Software and Support Materials obtained by Defendants as alleged above. Defendants have caused damage to Oracle in an amount to be proven at trial. 97. These relationships contained the probability of future economic benefit in the form of profitable support service contracts and software licenses. 101. Oracle’s computers. and/or computer network.
fraud and related activity in connection with an access device. As a result of Defendants’ acts. violation of the Federal Computer Fraud and Abuse Act.C.C.C. causing certain current and prospective support clients to contract with Defendants instead of Oracle for their software support and maintenance and. Cal. and ultimately to migrate such customers away from Oracle’s software programs and onto their own. 18 U.S. wire fraud. On information and belief.S. § 1343. § 1962.S. These acts were undertaken by Defendants to obtain for themselves the software support contract revenue at Oracle’s expense. renewed. As a direct and proximate result of Defendants’ actions. 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. § 1029. as alleged above. and conspiracy. including. the above-described relationships have been actually disrupted. 102. This conduct. unjust enrichment. 106. 18 U. 105. Defendants’ conduct was wrongful by a measure beyond the fact of the interference itself. for their enterprise software. and used that property to obtain and retain Oracle’s current and prospective clients. §§ 270111. Cal. unauthorized access to computers. conversion.S. 103. violation of RICO. receipt of stolen property. Defendants’ conduct also constitutes trespass to chattels. 18 U. § 1030 et seq. 18 U.C. Penal Code § 496. or expanded support contracts and software licenses with Oracle rather than Defendants. 18 U. constitutes violations of numerous state and federal statutes and codes. 104.S.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 substantial probability that Oracle support customers would have initiated. loss of profits from sales or licenses to 31 COMPLAINT . and violation of the Stored Communications Act. copied Oracle’s intellectual and contractual property. in some cases.. Defendants gained unauthorized access to Oracle’s password-protected Customer Connection support website through false or improper credentials. and without the cost of competing fairly by independently developing the same support materials. Oracle has suffered economic harm. but not limited to. but not limited to. Penal Code § 502.C. including.
111. there is a substantial probability that Oracle support customers would have initiated. 110. oppressive. 108. Defendants’ wrongful conduct was a substantial factor in causing this harm. Had Defendants refrained from engaging in the unlawful and wrongful conduct described in this complaint. Defendants failed to act with reasonable care. and in conscious disregard of Oracle’s rights. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. as described above. Fourth Claim for Relief Negligent Interference With Prospective Economic Advantage (By Oracle Against All Defendants) 109. These relationships contain the probability of future economic benefit in the form of profitable support service contracts and software licenses. malicious. 112. Instead. was willful. renewed. their actions are likely to recur and will cause Oracle irreparable injury for which there is no adequate remedy at law.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. they used Oracle’s Software and Support Materials to obtain and retain for themselves software 32 COMPLAINT . and knew or should have known that these relationships would be interfered with and disrupted if Defendants failed to act with reasonable care in their use of Oracle’s Software and Support Materials. Defendants’ interference with Oracle’s prospective economic advantage with its current and future customers. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. Oracle has an expectancy in continuing and advantageous economic relationships with current and prospective purchasers and licensees of Oracle’s support services and software. Defendants knew or should have known about the economic relationship. or expanded support contracts and software licenses with Oracle rather than Defendants. described above. Unless Defendants are restrained by appropriate injunctive relief. 107.
S.S. 115. 116. and software products.C.S. copied Oracle’s intellectual and contractual property. and used that property to obtain and retain Oracle’s current and prospective clients. receipt of stolen property. including.C. fraud and related activity in connection with an access device. and violation of the Stored Communications Act. § 1029. in some cases. 18 U.C. conversion. Cal. but not limited to. Oracle has suffered economic harm. maintenance. 33 COMPLAINT . Penal Code § 502. As a result of Defendants’ acts. causing certain current and prospective support clients to contract with Defendants instead of Oracle for their software support and maintenance and. 114. their actions are likely to recur and will cause Oracle irreparable injury for which there is no adequate remedy at law. Defendants gained unauthorized access to Oracle’s password-protected Customer Connection support website through false or improper credentials. §§ 270111.S. unauthorized access to computers. § 1343. loss of profits from sales to current and potential customers of Oracle support. Defendants’ wrongful conduct was a substantial factor in causing this harm.C. Unless Defendants are restrained by appropriate injunctive relief. Defendants’ conduct also constitutes trespass to chattels. constitutes violations of numerous state and federal statutes and codes. This conduct. unjust enrichment.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. violation of RICO. 18 U. Defendants’ conduct was wrongful by a measure beyond the fact of the interference itself.C.S. 18 U. as alleged above. wire fraud. Penal Code § 496. for their enterprise software. and conspiracy.. 18 U. the above-described relationships have been actually disrupted. As a direct and proximate result of Defendants’ actions. including. 18 U. 113. Cal. but not limited to. 117. § 1962. § 1030 et seq. violation of the Federal Computer Fraud and Abuse Act.
C..S. Defendants’ conduct constitutes violations of numerous state and federal statutes and codes.S.Cal. interference with business relationships. 123. Defendants have improperly and unlawfully taken commercial advantage of Oracle’s investment in its confidential. & Prof. trespass. Bus.C. unjust enrichment.S.S. negligent interference with prospective economic advantage. Code §§ 17200. § 1029. 18 U. unauthorized access to computers. unlawful. including. 119. Cal. Fifth Claim for Relief Unfair Competition . conversion. intentional interference with prospective economic advantage. §§ 1030 et seq. and conspiracy. Penal Code § 496.C.S. fraud and related activity in connection with an access device.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 118. Penal Code § 502. Cal. Defendants have engaged in unlawful business acts or practices by committing acts including computer fraud. & Prof. but not limited to. and copyrighted Software and Support Materials. and violation of the Stored Communications Act. 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. 34 COMPLAINT . § 1962. Defendants’ conduct also constitutes trespass to chattels. 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. 120. receipt of stolen property. The acts and conduct of Defendants constitute fraudulent. conversion. 18 U. 121.C. violation of the Computer Fraud and Abuse Act.C. 18 U. all in an effort to gain unfair competitive advantage over Oracle. 18 U. wire fraud. and other illegal acts and practices as alleged above. violation of RICO. and unfair competition as defined by California Bus. 122. § 1343. 18 U. In light of Defendants’ conduct. proprietary. 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. §§ 2701-11. et seq.
Sixth Claim for Relief Conversion (By Oracle Against All Defendants) 127. or distribution of such property. including. This property is the sole and exclusive property of Oracle. including. 35 COMPLAINT . compensation. Instead of paying Oracle for the use of its property. 128. As a result of such unfair competition. and benefits they may have obtained in violation of California Business & Professions Code § 17200 et seq. 129. Defendants should further be ordered to return all materials taken from Oracle. or control. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. and copyrighted Software and Support Materials. 130. downloading. but not limited to. to Defendants’ copying. custody. Oracle has an exclusive right to possession and distribution of such property. returning the value of the stolen property itself and any revenue earned from it. and deceptive business practices. retention. and should be enjoined from further unlawful. 126. whereby Oracle has no adequate remedy at law. unfair. expressly or impliedly. earnings. removal.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. Defendants intentionally and willfully entered Oracle’s password-protected Customer Connection support website without permission and took possession of Oracle’s property. will continue to suffer irreparable injury. Oracle at no time consented. unless Defendants are enjoined from such unfair competition. Defendants should be compelled to disgorge and/or restore any and all revenues. and all copies of such. all of which Oracle stored on its computer system. Oracle has also suffered irreparable injury and. proprietary.. which is valuable to Oracle and vital to its continued business operations. profits. 125. but not limited to. Oracle’s confidential. in their possession. Defendants’ unfair business practices have unjustly minimized Oracle’s competitive advantage and have caused and are causing Oracle to suffer damages.
its access-restricted internet-based support system. and other damages in an amount to be proven at trial. Seventh Claim for Relief Trespass To Chattels (By Oracle Against All Defendants) 136. and the Software and Support Materials on that support system.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 131. Since that time. Defendants’ wrongful conduct was a substantial factor in causing this harm. in an amount to be determined at trial. at the latest. as described above. 132. In addition. 36 COMPLAINT . At all times mentioned in this Complaint. Oracle is entitled to an award of the value of the property taken. Oracle is entitled to damages and repossession of the converted property. As a direct and proximate result of Defendants’ actions. 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. Allowing Defendants to retain the benefits received as a result of their wrongful acts would unjustly benefit Defendants at Oracle’s expense. Oracle is entitled to restitution of the Defendants’ ill-gotten gains. 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. Oracle had legal title to and actual possession of Customer Connection. and will continue to lose. or in the alternative. 137. 133. In addition. 135. 134. Oracle will seek its election of remedies at trial. Defendants may have been obtaining unjust and substantial benefit from the sale and distribution of Oracle’s property to third parties without Oracle’s consent and without paying Oracle for the value of such property. Oracle has lost. profits from potential purchasers of Oracle support services and licensees of Oracle software products. with interest. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here.
Defendants continue to unjustly retain these benefits at the 37 COMPLAINT . as well as Defendants’ trespass on. Oracle is entitled to recover any and all damages it sustained as a result of such trespass. Defendants’ trespass therefore threatens to cause irreparable harm to Oracle. Defendants intentionally interfered with Oracle’s use or possession of both Customer Connection and Oracle’s related internal databases and systems. damage to Oracle’s rights to dominion and control over its property. computer fraud concerning. 143. Eighth Claim for Relief Unjust Enrichment/Restitution (By Oracle Against All Defendants) 142. in an amount to be determined at trial. 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 caused Oracle’s property to greatly diminish in value and deprived Oracle of the intended use of its computer systems. damage to the functionality of Oracle’s computer system and data. including Defendants’ interference with Oracle’s business relationships and other unfair business practices. 140. the integrity and functionality of Oracle’s computer system and data. Defendants’ trespass and interference proximately caused damage to Oracle. Defendants’ trespass interfered with. and damaged. for which Oracle’s remedy at law is not adequate to compensate it for the injuries inflicted and threatened. including. and damage to the confidential and copyrighted nature of the information on Oracle’s website. 141. As a result.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 138. Defendants will continue to commit such acts and other competitors will be encouraged to sweep Oracle’s website. Defendants unjustly received benefits at the expense of Oracle through their wrongful conduct. but not limited to. 139. and the Software and Support Materials housed for licensed access through Customer Connection. which took substantial time and money for Oracle to develop. and conversion of the Software and Support Materials. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here.
149. including Defendants’ interference with Oracle’s business relationships and other unfair business practices. 147. 144. 38 COMPLAINT . Defendants’ intentional agreement to commit. oppressive. Defendants willfully. damage. and knowingly agreed and conspired with each other to engage in the alleged wrongful conduct. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. Oracle is accordingly entitled to full restitution of all amounts in which Defendants have been unjustly enriched at Oracle’s expense. including. these wrongful acts was willful. and harm. 148. and in conscious disregard of Oracle’s rights.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. Defendants did the acts alleged pursuant to. and commission of. loss. or adopting the acts of the others. but not limited to. The wrongful conduct committed pursuant to the conspiracy was a substantial factor in causing this harm. Oracle has suffered injury. 146. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. Ninth Claim for Relief Civil Conspiracy (By Oracle Against All Defendants) 145. loss of profits from sales to current and potential customers of Oracle support services and licenses for Oracle’s software programs. and in furtherance of. computer fraud concerning. As a direct and proximate result of the acts in furtherance of the conspiracy. intentionally. malicious. encouraging. as well as Defendants’ trespass on. It would be unjust for Defendants to retain any value they obtained as a result of their wrongful conduct. that agreement and/or furthered the conspiracy by cooperating. ratifying. and conversion of the Software and Support Materials.
and harm. by providing substantial assistance and/or encouraging the others to act. 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. As fully described above. computer fraud concerning. 154. and in conscious disregard of Oracle’s rights. including. 151. malicious. Defendants’ aiding and abetting of these wrongful acts was willful. and conversion of the Software and Support Materials. 150. damage. 152. 153. The wrongful conduct aided and abetted by the Defendants was a substantial factor in causing this harm. and aided and abetted such wrongful conduct. including interference with Oracle’s business relationships and other unfair business practices. Oracle has suffered injury. 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. loss of profits from sales to current and potential customers of Oracle support services and licenses to Oracle software programs. separately considered. Defendants also aided and abetted the described wrongful conduct of the other Defendants by giving substantial assistance and/or encouragement that. oppressive. As a direct and proximate result of the aiding and abetting of these acts. 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. was wrongful in and of itself. but not limited to. Defendants had full knowledge or should have reasonably known of the true nature of the wrongful conduct of each other Defendant. 39 COMPLAINT . loss. as well as Defendants’ trespass on.
158. and unlawfully taking commercial advantage of Oracle’s investment in its Software and Support Materials. servants. and copyrighted Software and Support Materials. including without limitation. without Oracle’s authorization. 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. Defendants have received money as a result of their misconduct. in furtherance of their unlawful and deceptive scheme as described above. and attorneys. to a full accounting. Since at least September 2006. employees. Prayer For Relief WHEREFORE. internal documents. therefore.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. but not limited to: (a) Intentionally and/or negligently interfering with Oracle’s prospective economic advantage with its existing and potential customers. including data. Oracle respectfully prays for the following: A. or using any property obtained from Oracle’s website. Oracle is entitled. proprietary. (d) Fraudulently accessing and intentionally trespassing on Oracle’s password-protected Customer Connection website. Oracle’s confidential. and that some or all of such money is rightfully due to Oracle. at Oracle’s expense. and valuable 40 COMPLAINT . including without limitation the Customer Connection website. agents. Defendants have obtained business through the use of unlawful conduct including. 157. proprietary. and. (b) Improperly. without authorization or consent. their officers. and copyrighted Software and Support Materials. and those in active concert or participation with any of them from: (1) accessing any Oracle restricted-access or customer website. (c) Willfully converting Oracle’s confidential. For a preliminary and permanent injunction restraining Defendants. (2) selling. distributing. willfully. for the purpose of sabotaging Oracle’s ability to do business and compete in the market.
downloading or copying property from Oracle’s website without Oracle’s authorization. F. I. G. J. B.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. Oracle’s confidential. proprietary. and copyrighted Software and Support Materials. and other computer code. C. patches. on the basis of their willful and deliberate unauthorized computer access. K. For prejudgment interest. 41 COMPLAINT For damages to be proven at trial. as set forth in this Complaint. including. patches. but not limited to Oracle’s confidential. and valuable updates. setting forth in detail the manner and form in which Defendants have complied with the injunction. fixes. 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. including. That the Court order Defendants to pay Oracle punitive damages in a sum to be determined at trial. D. and other computer code. Court deems just and proper. and copyrighted Software and Support Materials. patches. without limitation. including data. including data. For an Order awarding Oracle its attorneys’ fees and costs. that Defendants took from Oracle. For an Order directing Defendants to return Oracle’s property. proprietary. For restitution and disgorgement of all ill-gotten gains unjustly obtained and retained by Defendants through the acts complained of here. fixes. and other computer code. H. internal documents. and valuable updates. aiding and abetting and conspiracy. For an Order awarding Oracle such other and further relief as the . internal documents. under oath. and. intentional interference with Oracle’s prospective economic advantage. For an accounting. (3) removing. fixes. (4) otherwise engaging in acts of unfair competition and interference with Oracle’s business relationships.