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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
an SAP America branch office location and home of its wholly-owned subsidiary SAP TN. In many instances. 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. Texas. Rather.” In other cases. Indeed. to gain access to Oracle’s system under false pretexts. For example. Oracle to date has identified more than 10. Oracle has found many examples of similar activity. Texas IP address used to access and download Oracle’s Software and Support Materials is connected directly to SAP’s 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 departed customers. SAP employees used the log-in IDs of multiple customers. Texas. Across its entire library of Software and Support Materials in Customer Connection. SAP users effectively swept much of the contents of Oracle’s system onto SAP’s servers. and phone number) that did not match the customer at all. In some cases. These “customer users” supplied user information (such as user name. All of these customers whose IDs SAP appropriated had one critical fact in common: they were. 7. combined with phony user log-in information. or 4 COMPLAINT . For example. like Metro Machine Corp. Oracle’s server logs have recorded access through this same IP address by computers labeled with SAP identifiers using SAP IP addresses. Employing these techniques.000 unauthorized downloads of Software and Support Materials relating to hundreds of different software programs. the access originated from an internet protocol (IP) address in Bryan. 9. this user information did not match anything: it was fake. 8.com” and fake phone numbers such as “7777777777” and “123 456 7897. The Bryan. SAP blended log-in information from multiple customers with fake information. and downloaded Software and Support Materials even after the customer had dropped its support rights with Oracle.. including the ones described above. email address. SAP TN is a company that purports to provide technical support services on certain versions of Oracle’s PeopleSoft and JDE software programs. This systematic theft of Oracle’s Software and Support Materials did not originate from any actual customer location.” Others used phony email addresses like “test@testyomama. some users logged in with the user names of “xx” “ss” “User” and “NULL.
a software company acquired by PeopleSoft. an independent software support company founded by former PeopleSoft software engineers. 1 ranked SAP. aimed at taking market share from No. combining features from the PeopleSoft and JDE1 software and its CEO Larry Ellison has been vocal about his intentions to take market share away from SAP. SAP AG’s hasty acquisition of SAP TN was widely perceived as a response to the new competitive threat from Oracle. copyrighted Software and Support Materials.” Another mused. 12. 5 COMPLAINT . and support. is developing a ‘super set’ of applications.” 13. Oracle said it has thousands of developers building the new application suite. and support technicians. Edwards World Solutions. * * In the world of enterprise software applications. this theft appears to be an essential – and illegal – part of SAP’s competitive strategy against Oracle. In January 2005. As explained below. SAP AG spokesman Bill Wohl vowed that SAP AG would use SAP TN to “keep the pressure on 1 “JDE” refers to J. Inc. and (c) support contracts to keep the software updated and upgraded. new customers of SAP TN – SAP AG’s and SAP America’s software support subsidiary whose sole purpose is to compete with Oracle. SAP AG acquired SAP TN. One industry analyst stated that. As a result of this illegal activity. in 2003. “After the acquisition of PeopleSoft earlier this year. SAP apparently has now warehoused an extensive library of Oracle’s proprietary.D. through SAP America. SAP’s own statements confirmed it. Not by coincidence. developers. “Oracle Corp. consulting. increasing Oracle’s potency as a competitor to SAP AG for enterprise applications software. called Project Fusion. (b) consulting relating to the implementation and operation of the software. Oracle had previously announced that in January 2005 it would complete its acquisition of PeopleSoft. Oracle officially became a player on SAP’s turf. * 11. Industry observers noted this fundamental shift in the competitive landscape. revenue comes from three basic activities: (a) license of the underlying software. 10.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 were just about to become.
or the day of.” In connection with the SAP TN acquisition.” and a sign that “SAP has taken the gloves off. SAP appeared to focus more on growing the SAP TN sales force rather than investing in or expanding SAP TN’s tiny development team. 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. Indeed. by way of example. SAP advertised this strategy as its “Safe Passage” program. the 6 COMPLAINT SAP’s unlawful copying and theft includes. crowed “There’s nothing that I love more than to win. explicitly designed to transition customers away from Oracle products and onto the SAP software platform. much less the 50% discount promoted by SAP. 14.” 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. the . It certainly did not match Oracle’s investment in development resources. As reported in industry publications. with indications that this number may go significantly higher if traced further back in time. Bill McDermott. a program aimed at siphoning off valuable software maintenance revenue from Oracle and persuading Oracle customers to switch software products [to SAP]. industry observers deemed the “Safe Passage” program “measurably more aggressive. SAP America’s CEO. SAP TN did not appear to have the development capability to meet the support commitments advertised in the “Safe Passage” brochures at any price. committed to throw “a lot of additional resources” behind SAP TN (which consisted of only 37 employees in total). SAP stole much of the Software and Support Materials directly from Oracle. following: · More than 10. 15. Nevertheless.” Although SAP America President and CEO.000 illicit downloads from Customer Connection between September 2006 and January 2007. or even come close to it. · A systematic pattern of “sweeping” Oracle’s Customer Connection support website from SAP TN servers just days before. Publicly.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. Bill McDermott. SAP TN’s services “form[ed] the basis of [SAP AG’s] Safe Passage initiative.
unlawful. SAP has taken Oracle’s Software and Support Materials and apparently used them to insinuate itself into Oracle’s customer base.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16. to try to “keep the pressure on Oracle. in the purported name of customers that had never licensed those products and had no legal access to them. Through its illegitimate and illegal business practices. expiration of a new SAP TN customer’s support contract with Oracle. and its customers. authorized customers or through normal access to Oracle’s Customer Connection system. the indiscriminate. In short. and theft of. its many employees. Oracle has no adequate remedy at law for the harm threatened and caused by these acts. 7 COMPLAINT . These illegal business practices threaten to cause irreparable harm to Oracle. or in some cases on behalf of former Oracle customers with no access rights to Oracle’s Software and Support Materials whatsoever. 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. · On multiple occasions. · The improper access to. clearly-marked internal proprietary Oracle support documents not available even to licensed. 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.” SAP has been engaged in a systematic program of unfair. · Accessing and downloading Software and Support Materials across multiple product lines in multiple lines of business available on the Customer Connection support website. and to attempt to convert these customers to SAP software applications.
18. Oracle USA develops and licenses database and applications software programs and provides related services. 23. (“PeopleSoft”) and JDE. The corporate relationship of the three named defendants is set forth in the chart below. State of California. County of San Mateo. Texas. 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. SAP America is a wholly-owned subsidiary of SAP AG. 21. OIC is the owner of the copyrights at issue in this action. Pennsylvania. County of San Mateo.. State of California. Oracle Corporation and Oracle USA are the licensees of the copyrights at issue in this action. Inc. SAP TN is a wholly-owned subsidiary of SAP America. THE PARTIES 17. Oracle Corporation develops and licenses database and applications software programs and provides related services around the world. with its only place of business in Redwood City. Oracle USA is a Colorado corporation duly authorized to do business in the State of California. Germany. Oracle USA is the successor to PeopleSoft USA. 20. SAP TN is a Texas corporation with its principal place of business in Bryan. 8 COMPLAINT . 22. with its principal place of business in Redwood City. OIC is a California corporation duly authorized to do business in the State of California. State of California. Walldorf.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. County of San Mateo. Oracle Corporation is a Delaware corporation with its principal place of business in Redwood City. 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. 19. Directly and through its subsidiaries.
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. California. or otherwise. each of the Defendants. promote. had full knowledge of and gave substantial 9 COMPLAINT . and specifically this judicial district. license. Defendants all are doing business in and/or have directed their activities at California. whether individual. 25. Subsidiary) SAP TN (Wholly-owned U. specifically in this judicial district. SAP America had both the right and authority to control the actions of SAP TN. At all material times. sell. By way of example only. employee. alter ego. service. Similarly. SAP AG negotiates and enters into software license and support agreements directly within the United States and. including Does 1 through 50. representative. Subsidiary) Oracle is currently unaware of the true names and capacities of Does 1 through 50. or co-conspirator of the others. partner. subsidiary. and support customers in California and in this judicial district. through its 100% ownership of both SAP America and SAP TN. servant. 26. unincorporated association. partnership. SAP AG had both the right and the authority to control the actions of both corporations.S. 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. parent. through its 100% ownership of SAP TN. was the agent. at all material times. inclusive. affiliate. and finances the sales and promotional activities of both SAP America and SAP TN throughout the United States and in California. SAP AG also holds an annual meeting of its Board of Directors in Palo Alto. SAP AG (German Parent Corporation) SAP America (Wholly-owned U. SAP America and SAP TN advertise. At all material times. Oracle will amend this Complaint to allege their true names and capacities when ascertained. 27. corporation. joint venturer. and therefore sues these defendants by such fictitious names.S.
S. 29. Power & Associates’ global certification for outstanding service and support based 10 COMPLAINT . Oracle will seek to amend this Complaint to add claims for copyright infringement under the Copyright Act.C.S. pursuant to 28 U. and the first to receive J. because a substantial part of the events giving rise to the dispute occurred in this district. and this Court has subject-matter jurisdiction over this action pursuant to 18 U. representation. §§ 1030 et seq. § 1391. and in doing the things alleged. a substantial part of the property that is the subject of the action is situated in this district. joint venture. affiliation.C. VENUE 30. VI. § 1030(g) and 28 U. et seq. each was acting within the scope of such agency.S. and the Court will have subjectmatter jurisdiction over those claims pursuant to 28 U. IV. INTRADISTRICT ASSIGNMENT 31.C. 18 U. Oracle is the world’s largest enterprise software company. § 1338.S.. FACTUAL ALLEGATIONS A.C. employment. and the Court has personal jurisdiction over each of the parties as alleged throughout this Complaint. partnership. Assignment is proper in this division under Civil L.C. service. § 1331. and each is legally responsible for the acts and omissions of the others. In addition.S.C. §§ 101.. or conspiracy. V.C. Oracle’s first cause of action arises under the Computer Fraud and Abuse Act. 3-2 (c) and (d). 17 U. This Court has supplemental subject matter jurisdiction over the pendent state law claims under 28 U.D. § 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. Venue in this district is appropriate. III. JURISDICTION 28.1 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.S.R. Oracle’s Software and Support Materials 32. 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.S. when the relevant copyright registrations issue.
the user must click on a button indicating that it accepts these terms.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. 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”). 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. Any reproduction or redistribution of the Software not in accordance with the License Agreement is expressly prohibited. 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. 13 COMPLAINT . agree to additional legal restrictions. datasheets and FAQs) from this server (“Server”) is granted. press releases. and (3) no modifications of any Documents are made. 42. users accessing specific materials. software action requests. Use for any other purpose is expressly prohibited. In addition. The Legal Download Agreement further restricts use of documents downloaded from the website: Permission to use Documents (such as white papers.” To download a SAR. COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. 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. These terms notify the user that the software available to download from Oracle is Oracle’s copyrighted material. (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. product or upgrade announcements. such as a Software Application Request (“SAR”) through the SAR Search Web Application. provided that (1) the below copyright notice appears in all copies and that both the copyright notice and this permission notice appear. 41.
SAP AG suddenly found itself in a far different competitive environment than the one in which it had grown comfortable. 2004 at the trial on the Department of Justice’s unsuccessful effort to block Oracle’s acquisition of PeopleSoft. 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. Oracle Threatens To Unseat SAP 43.000 business applications software customers throughout the world. Oracle launched the newly-united company and unveiled.000-strong combined workforce of Oracle and PeopleSoft would provide unparalleled innovation and support to 23. 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. testified on June 23. the combination revitalized Oracle overnight as a competitor in the business software applications business. Not only do many SAP AG customers use Oracle’s superior database software programs. or intellectual property rights to. and geographic and product scope.” After the merger. As SAP America’s Vice President of Operations. 14 COMPLAINT . On January 7. he even claimed to wish Oracle “good luck” in competing with SAP AG. Oracle would “not [be] a competitor which could really hurt us. Rather than improve its own products and offerings. As SAP AG reeled. 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. 46. size. But SAP AG had no answer for the business proposition the new Oracle offered. SAP AG instead considered how to undermine Oracle. SAP AG CEO Henning Kagermann claimed that even with PeopleSoft.000 people joining by Webcast and phone. Richard Knowles. these same products. at its headquarters with more than 48. 44. broader product line of enterprise applications software programs to compete against SAP AG. 2005. 45. but now Oracle offered a deeper. how the nearly 50. events unfolded at a rapid pace: eleven days after its announcement.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. despite not owning any of the software code for.
and to use SAP TN to do it. SAP TN 47. often outdated. It claimed to compete with PeopleSoft.” Mackey made Nelson an offer “he couldn’t refuse. SAP AG proposed to buy SAP TN outright and make it a wholly-owned – and wholly-beholden – subsidiary.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.” Aligning with SAP AG made little sense for SAP TN. it instead focuses on simply keeping the software up and running for an annual fee. SAP TN would eventually lose its customer base. because to the extent SAP AG successfully undermined Oracle by having its customers move from Oracle’s software to SAP AG’s software. As one industry journalist explained.” 49. SAP AG’s “front man for SAP AG’s mergers and acquisitions strategy. As described in a glossy spread in a leading industry publication. by providing low-cost maintenance and support services to PeopleSoft and JDE customers running assorted versions of these software programs. SAP TN president Andrew Nelson got “the magic phone call” from Jim Mackey. just weeks before Oracle would close the PeopleSoft acquisition. To retain full control over every detail of its scheme to lure away customers from Oracle. In December 2004. Texas and founded by former PeopleSoft employees. So SAP AG had to make the price right. SAP Responds To Oracle Competition With Its “Safe Passage” Scheme 48. SAP AG bought “another arrow in its quiver to hunt after Oracle’s customers. 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. Oracle. but – with the Oracle/PeopleSoft 15 COMPLAINT . 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. Acquiring SAP TN was not a mere investment by SAP AG.” D. headquartered in Bryan. As one industry observer put it. but a calculated competitive move. SAP AG has refused to disclose the terms of its SAP TN purchase. SAP TN was a small software services company. 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. and later. in December 2004. however. JDE.
” 51. SAP America’s CEO. As SAP AG Managing Director Alan Sedghi admitted. 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. ease integration with SAP NetWeaver(TM) and begin the process of innovating their businesses today. After the acquisition. On January 19. 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.” A month later. at the SAP AG annual meeting. SAP AG’s top executives unveiled SAP AG’s acquisition of SAP TN as the centerpiece of its new “Safe Passage” scheme. In April 2005. publicly vowed to bankroll this effort to undermine Oracle by putting “a lot of additional resources into TomorrowNow. SAP would aggressively campaign to migrate those customers to an SAP enterprise software platform. The CEOs stated the proposition more bluntly. First. in connection with converting Oracle customers to SAP support (via SAP TN).” And SAP TN certainly knew its role was to achieve SAP AG’s ends: as SAP TN’s CEO. 52. Henning Kagermann. admitted that the SAP TN acquisition was “an integral part” of SAP’s Safe Passage program. We want them to be successful. 50.1 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. stated. Bill McDermott.” The Senior Vice President and Chief Operating Officer of SAP Asia Pacific. in barely a month. SAP AG’s CEO. which in turn was part of SAP’s “ongoing strategy to compete with Oracle. “We're owned by SAP. identified SAP TN as instrumental to the parent company’s “Safe Passage” program. SAP America CEO Bill McDermott claimed “The SAP Safe Passage offering gives companies an affordable way to protect their current investments. 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. SAP would offer cut-rate pricing combined with the promise of essentially unlimited future support to former PeopleSoft and JDE support customers. to lure the support business over.” 16 COMPLAINT . publicly indicating that SAP TN was authorized and intended to implement SAP AG’s goals. SAP TN agreed to the deal and cast its lot with SAP AG. Colin Sampson.
SAP implemented Phase One immediately. quality support from Oracle.” and elsewhere says that “Safe Passage maintenance and support are delivered worldwide through TomorrowNow. it took a hands-on approach. offering significantly lower cost maintenance alternatives to Oracle customers running PSFT/JDE solutions” through 70. officially “bundled” with SAP AG enterprise software as a centerpiece of the Safe Passage program. consider another option: SAP.” 54. Beginning in January 2005. 55. These lower cost alternatives advertised by SAP AG were to come directly through SAP TN. To implement Phase Two of its plan (luring Oracle customers to the SAP enterprise software platform).” (emphasis supplied) SAP America’s website promises that “SAP and TomorrowNow can cut your maintenance costs by as much as 50% through 2015. To give teeth to these commingled sales efforts.” SAP TN’s website confirms its acceptance and undertaking of the SAP-controlled Safe Passage program: “TomorrowNow can also provide our support services as part of the SAP Safe Passage Program. 17 COMPLAINT . and Siebel customers – If Oracle’s options have you worried. technology and maintenance services. JD Edwards.000 direct mail solicitations to Oracle customers. SAP AG’s “second wave” included “an intensive customer recruitment campaign. PeopleSoft and JDE customer uncertainty about the prospects for long-term. Instead. SAP AG offered maintenance support through SAP TN. If customers declined to convert to SAP TN. As reflected on SAP AG’s website: “SAP offers Safe Passage for PeopleSoft. SAP sales representatives unleashed a torrent of marketing materials designed to exacerbate and leverage perceived. An April 2005 SAP AG press release apparently aimed to increase perceived doubt among Oracle customers by announcing a “second wave” of “Safe Passage. SAP AG did not simply sit back and leave the recruiting of potential Safe Passage customers to SAP TN’s sales force. SAP provides solutions. albeit unfounded.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 53.” To exploit the fear it intended to create. It deployed its salespeople to contact potential customers and push them to switch to SAP TN’s services. the SAP AG sales personnel would pressure the customers to drop Oracle products outright in favor of SAP AG’s suite.
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. .” 57. SAP AG’s 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 56.” How SAP could offer instantaneous. SAP executives touted the Safe Passage program’s limited success in its first year. technology. SAP AG’s President of Customer Solutions and Operations. and which it claimed “offers companies SAP solutions. 58.” SAP’s “cheaper price” (referred to elsewhere as “cut rate” support) continued at “50 cents on the dollar for maintenance fees.” including because SAP AG “extended the program in order to offer it as well to Siebel 18 COMPLAINT .com after Oracle’s announcement of its impending Siebel acquisition. By July 2006. SAP America President and CEO.’s own products [the Siebel products] for a far cheaper price. At the same time. as Oracle continued to take market share and expand its product offerings. SAP grew more desperate. boasted that Safe Passage “continues to do really well. Henning Kagermann. In October 2005.” but its services were expanded to support more Oracle product lines and a wider range of customers. investment protection and a clear road map to the next generation of business software. . SAP announced it would extend its Safe Passage program to Siebel customers. maintenance services. However. In a July 2006 earnings call. the program it implemented partly through SAP TN. “SAP AG plans to announce . 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 AG boasted in a press release that more than 200 customers had signed up for Safe Passage. Bill McDermott. round the clock Siebel code support within a few weeks of Oracle’s acquisition announcement remained a mystery. 2005 announcement that it would acquire Siebel Systems. and more aggressive. SAP AG continued to tout the success of Safe Passage. curiously. promised SAP AG would use SAP TN and the Safe Passage program to “fight for” more customers. including through its September 12. SAP AG CEO Henning Kagermann conceded that SAP had lost as much as 2% market share to Oracle. companies and corporate cultures. By March 2006. that it will offer technical support for more of rival software maker Oracle Corp. Léo Apotheker. As reported on Forbes.
Although SAP put a brave face on its ability to compete with the increasingly potent Oracle applications offerings. Oracle has now solved this puzzle. patches. Apotheker claimed that SAP now had “a global network of [SAP TN] capabilities” – enough to “gain significant traction. and the logic. 61. and in conjunction with opening new SAP TN offices around the world. simply did not add up.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. and other labor-intensive support items that a customer would need to maintain useful. by comparison. To stave off the mounting competitive threat from Oracle. Oracle. and purported to add full support for an entirely different product line – Siebel – with a wave of its hand. 60. SAP unlawfully accessed and copied Oracle’s Software and Support Materials. F. as it did on its website and its other materials.” “full upgrade script support. It was not clear how SAP TN could offer.” and. The economics.000 software and support engineers to create and help implement the code fixes. SAP continued to offer this comprehensive support to hundreds of customers at the “cut rate” of 50 cents on the dollar. optimally functioning Oracle software. 62. “30-minute response time. most remarkably. Oracle Finds A Suspicious Pattern To analyze and improve on its industry leading support services. To compound the puzzle. “customized ongoing tax and regulatory updates. even after having expanded its ranks to 150 employees. could actually develop and offer the hundreds of regulatory updates.” E. bug fixes. some industry analysts wondered whether a small company like SAP TN. patches. without infringing on Oracle’s intellectual property. A Deal Too Good To Be True 59.” “fixes for serious issues. 24x7x365” on software programs for which it had no intellectual property rights.” By extending the Safe Passage program to Siebel customers. The SAP Solution: Stolen Passage 1. 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 . maintains a development force of more than 15. and updates that comprise the advanced support services required by Oracle’s licensed customers.
2. In late 2006. a user purporting to be that customer. And. Oracle noticed huge. unexplained spikes in the number of customers on the online support website who had clicked the “No. Frequently. 64. or thousands of products beyond the scope of the specific customer’s licensed products and permitted access. 65. the support system responds by offering the customer further options. 63. hundreds. to take a copy of them all. over and over again. Oracle also discovered that the downloaded Software and Support Materials included internal documents not available even to licensed customers and not available through normal. employing the customer’s log-in credentials. Instead. continue search” option. these clicks could not reflect real responses from any human customers actually reading the solutions they had accessed. These clicks numbered in the thousands for several customers. authorized use of Customer Connection. Oracle soon discovered that many of these “customers” had taken massive quantities of Software and Support Materials beyond their license rights. and Oracle discovered that each response – each answer by users pretending to be the customer – occurred in a matter of seconds or less. 20 COMPLAINT . In the course of this investigation. Indeed. 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. apparently. in the month before a customer’s Oracle support expired. Given the extreme speed at which the activity occurred.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. with the aim of continually improving the support system for customers. Oracle discovered a pattern. Oracle regularly compiles this data to assess whether its system helped customers resolve their support issues. 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. including dozens. Some of these apparent customer users even downloaded materials after their contractual support rights had expired. If the customer selects the “No. would access Oracle’s system and download large quantities of Software and Support Materials.
In addition. (5) Nigel Pullan. V. and a significant number of its employees. (4) Mel Gadd. Global PeopleSoft Support.P.P. V. formerly worked at PeopleSoft and JDE. such as Wade Walden. · That the customer username and password are for the customer’s sole use in accessing this support server. International Sales. · Not to access the customer support system if it is not the customer’s authorized and designated Oracle technical support contact. SAP TN has intimate familiarity with these important restrictions and conditions relating to Oracle’s Software and Support Materials. Quality. 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. V. or lease the Software or Documentation. 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. relicense. V. appear to have applied their familiarity with the Customer Connection website to directly participate in and perfect the illegal 22 COMPLAINT . (3) Laura Sweetman. distribute. former PeopleSoft employees who work for SAP.P. for third party use. or any portion thereof. who is reflected as the person performing many of the downloads at issue. SAP TN’s management. rent. and (6) Shelley Nelson.P. · That the Materials on the support website are confidential information subject to existing confidentiality agreements.P. Global J. President and CEO. North American Sales. including: (1) Andrew Nelson. · Not to directly or indirectly. · 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. Of SAP TN’s tenmember management team. sublicense. JDE. or third party training. disclose. (2) Bob Geib. Edwards Support. six list prior employment experience with PeopleSoft.D. use.
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. Herbert Waldman.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. reproduce. §§ 101 et seq. Metro Machine Corp. By way of example 24 COMPLAINT . Grupo Costamex. Oracle has uncovered unlicensed downloads linked to SAP TN on behalf of numerous customers. Abbott Laboratories. Interbrew UK. 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. Honeywell International.. VSM Group AB. Distribution & Auto Service. Mortice Kern Systems.S.. and covers too many individual violations.. AbitibiConsolidated. Such acts constitute copyright infringement under 17 U. SAP TN’s acts violated Oracle’s exclusive rights to use. SAP TN reviewed and agreed to the terms and conditions on Oracle’s support website before proceeding.S. Inc. Helzberg Diamonds. including without limitation. offer for sale.. Ronis. Smithfield Foods. and in conscious disregard of Oracle’s protected intellectual property and the integrity of its computer systems.A. Fuelserv Limited.C. Accordingly. 17 U. publish. With literally thousands of software programs available for licensing. Specific Examples Of SAP TN’s Unlawful Customer Downloads SAP TN’s improper access to. display. Laird Plastics. National Manufacturing. Caterpillar Elphinstone. 75. SPX Corporation. Oracle’s Customer Connection website is too pervasive. Stearns & Co. and Yazaki North America. § 506. and therefore committed its theft knowingly and intentionally. Texas Association of School Boards. Inc. NGC Management Limited. OCE Technologies. and distribute these works. B.C. § 501 and also willful and intentional copyright infringement under 17 U. Border Foods. S.. and taking from. to comprehensively detail here. Bear. 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. Berri Limited.S. create derivative works.V. Merck & Co.. and impose strict confidentiality requirements. 4.C. 74.. Stora Enso.
Honeywell used and licensed PeopleSoft software applications.000 distinct Software and Support Materials for JDE software.000 of the Software and Support Materials taken in this period were solutions that Honeywell was not licensed to take at all. Wade Walden – a former PeopleSoft employee now employed by SAP. one of the largest pharmaceutical companies in the world. during which “Honeywell” was downloading almost 1800 solutions per day. More than 5. 77. In one specific library containing solutions for Enterprise One 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 of the nature and extent of SAP’s theft. Merck. 76. Most of these excessive downloads came during the course of four days. Users logging into Oracle’s support system with Merck’s credentials continued to download Software and Support Materials into March 2007. (“Merck”). 2007 and nearly 400 more the next day. 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. a user employing Honeywell’s log-in ID downloaded over 7. after switching to SAP TN. Honeywell International (“Honeywell”) is listed on SAP TN’s website as a client. Then. but Oracle discovered users downloading JDE products with Honeywell’s credentials. it averaged just over 20 downloads of Software and Support Materials per month. In the three months prior to that date. licenses and receives support for many Oracle software products. This unlawful downloading even stretched across product families. But. Oracle sets forth below illustrative instances of SAP TN’s illegal conduct regarding a few of its customers. the unauthorized downloads did not stop there. Inc. Many of these “Merck” downloads came directly from an IP address in Bryan. Over 2. 2007.000 Software and Support Materials in less than two weeks in January 2007. Merck’s support rights for its JDE software products expired on January 1. In the approximately three and a half year period before Honeywell switched to SAP TN.000 of these downloads related to JDE software products for which Merck had no license. Honeywell. Merck & Company. “Honeywell” downloaded over 450 distinct unlicensed solutions on January 16. users purporting to be “Merck” logged into the Oracle support system and downloaded over 9. 25 COMPLAINT . Oracle subsequently connected many of the illegal downloads to an SAP TN IP address and to SAP TN’s employee.
using names such as “xx” “ss” and “NULL. and could serve no legitimate or lawful business purpose.” “9999999999. Homebuilder Management. and Real Estate Management – none of which make sense coming from a European customer in support of its European business. OCE. authorization. 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. SAP TN users logged into Oracle’s support system using OCE’s credentials (and. authorization or other right to access and download the 5. Like the other companies.” and phone numbers such as “4444444444” and “999 999 9999.” In many cases.” Similar to the other customer examples.V. these illegal downloads are associated with the same IP address belonging to SAP TN in Bryan. From December of 2006 to January of 2007.” Neither Merck nor SAP TN had any license. OCE-Technologies B. In the months leading up to the expiration of OCE’s support rights for its Oracle products.000 distinct Software and Support Materials.000-plus unlicensed Software and Support Materials from Oracle. 26 COMPLAINT . 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. 78.000 distinct items for which OCE had no license. such as the name “user” and phone numbers such as “123 456 7897. Canadian Payroll. false user names) and downloaded over 12. Texas. and neither OCE nor SAP TN have any license. SAP TN users employed fake identification information to download the Software and Support Materials. (“OCE”) is located in the Netherlands and appears as a customer on SAP TN’s website. including specifically to a computer with SAP TN’s initials in the title. These downloads included over 3.” and even “xxx xxx xxxx. 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. since OCE does not run many of the software programs to which these downloads relate. “TNL-02. in some cases.” This systematic sweep of products across numerous licensed and unlicensed Oracle product lines and libraries dramatically exceeded the access for which OCE (and SAP TN acting on its behalf) had any right or authority. “TN-DL03.
(“Metro Machine”) dropped all Oracle support effective on January 1. In some cases. users purporting to represent Metro Machine logged onto Oracle’s support servers and downloaded nearly 6. users logging into Oracle’s support system with Metro Machine’s credentials continued to download Software and Support Materials into March 2007. Nearly 400 of those downloads related to software programs that Metro Machine had not licensed from Oracle. as reflected on SAP TN’s website. Oracle has traced these illegal and unauthorized downloads to the same SAP TN IP address employed for the Honeywell downloads described above. SPX. These SPX downloads included over 1. G. users purporting to represent SPX accessed and downloaded over 8.” Many of these SPX downloads. SPX averaged approximately eleven downloads per month from Oracle’s 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 79. at SAP AG’s and SAP America’s direction. In addition.” 80. SAP TN now claims to have delivered thousands of fixes and more than 800 tax and regulatory updates to Oracle’s former customers. “tn-wts01. 2006 and became an SAP TN customer. illegally downloaded thousands of fixes and updates from Oracle’s restricted customer support website. but used fake identification information like the name “NULL” and phone numbers like “7777777777” and “999 999 9999. and some were traced to a computer with SAP TN’s initials in the title. listed on its website.700 distinct Software and Support Materials for which SPX had no license. SAP Adds The Ill-Gotten Gains To Its Coffers 81. Metro Machine. Metro Machine Corp. For the nine month period prior to October 2006. these users logged in using SPX credentials. Then. SPX Corporation (“SPX”) dropped all Oracle support on December 10. SAP TN. 2006 were Software and Support Materials related to unlicensed Payroll software.000 distinct Oracle Software and Support Materials (far more than SPX could legitimately access or use). SAP AG and SAP America directed this 27 COMPLAINT . Over 300 distinct downloads just on November 30. between October and December 2006. In the month before Metro Machine dropped its support rights with Oracle. 2007 and switched to SAP TN. originated from the same IP address belonging to SAP TN. Not coincidentally.000 distinct Software and Support Materials. like the others.
interference with Oracle’s business relationships. § 1030(a)(4) by knowingly. SAP has thereby caused significant damage to Oracle through its SAP TN subsidiary. information. and by obtaining information from such a protected computer. code. by intentionally accessing a computer used for interstate commerce or communication. and prospective customers and the associated license and support revenue to artificially inflate its market share. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here.C. without authorization or by exceeding authorized access to such a computer. § 1030(a)(5)(A)(i) by knowingly causing the transmission of a program. and with intent to defraud Oracle. 18 U. §§ 1030(a)(2)(C) & (a)(4) & a(5)) (By Oracle Against All Defendants) 82. 18 U. 85. 28 COMPLAINT .C. current.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.S. and related computer fraud. trespass on Oracle’s support website. Using Oracle’s own protected property to unfairly compete against and undercut Oracle. § 1030(a)(2)(C). and never disavowed it. ratified it.S. in addition to the irreparable harm caused by Defendants’ unfair competition. and by means of such conduct furthered the intended fraud and obtained one or more things of value.C. including but not limited to Oracle’s Software and Support Materials.S. SAP has illegally converted Oracle’s former. 84. or command and as a result intentionally causing damage without authorization to a protected computer owned by Oracle. 18 U. 83.S. accessing a protected computer. without authorization or by exceeding authorized access to such a computer.C. Defendants have violated the Computer Fraud and Abuse Act. First Claim for Relief Violation of Federal Computer Fraud and Abuse Act (18 U. Defendants have violated the Computer Fraud and Abuse Act. Defendants have violated the Computer Fraud and Abuse Act.
copying. causing damage to Oracle. and computer systems and other losses and damage in an amount to be proved at trial.Cal. Defendants will continue to commit such acts. in any event. The computer system or systems that Defendants accessed as described above constitute a “protected computer” within the meaning of 18 U. fraudulently. entitling Oracle to remedies including injunctive relief as provided by 18 U. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here.S. 87. Defendants’ unlawful access to and theft from Oracle’s computers also have caused Oracle irreparable injury. data.C.C. programs.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 86. and without permission accessing and using Oracle’s computer services. or assisting in providing. taking. Defendants have violated the Computer Fraud and Abuse Act. 88. and making use of programs. Defendants have violated California Penal Code § 502(c)(2) by knowingly and fraudulently. §§ 1030(a)(5)(A)(ii) & (iii) by intentionally accessing a protected computer without authorization. a means of accessing Oracle’s computers. Penal Code § 502 (By Oracle Against All Defendants) 90. Second Claim for Relief Computer Data Access and Fraud Act . Defendants have violated California Penal Code § 502(c)(3) by knowingly. 92. without limitation. 93. 89. 91.S.C. and without permission. Defendants have violated California Penal Code § 502(c)(6) by knowingly. § 1030(e)(2). in an amount well over $5000 aggregated over a one-year period.S. Unless restrained and enjoined. 18 U. and files from Oracle’s computers. § 1030(g). computer system. computer system. and/or computer network. and/or computer network. Oracle’s remedy at law is not adequate to compensate it for these inflicted and threatened injuries. accessing. 29 COMPLAINT . fraudulently. but. including. harm to Oracle’s data. and without permission providing. recklessly or without due regard for their actions. Oracle has suffered damage and loss by reason of these violations.
Oracle’s computers. fraudulently. Oracle is also entitled to recover its reasonable attorneys’ fees pursuant to California Penal Code § 502(e). or causing to be accessed. and without permission accessing. Oracle is therefore entitled to punitive damages. Third Claim for Relief Intentional Interference With Prospective Economic Advantage (By Oracle Against All Defendants) 99. there is a 30 COMPLAINT . Oracle has also suffered irreparable injury from these acts. 101. 95. and/or computer network. 98. Oracle has an expectancy in continuing and advantageous economic relationships with current and prospective purchasers and licensees of Oracle’s support services and software. 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. 97. Defendants have caused damage to Oracle in an amount to be proven at trial. Defendants have violated California Penal Code § 502(c)(7) by knowingly. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. and due to the continuing threat of such injury.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. Had Defendants refrained from engaging in the unlawful and wrongful conduct described in this complaint. 100. 96. Oracle owns the data that comprises the Software and Support Materials obtained by Defendants as alleged above. entitling Oracle to injunctive relief. has no adequate remedy at law. 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.
§ 1343. §§ 270111. and ultimately to migrate such customers away from Oracle’s software programs and onto their own. and used that property to obtain and retain Oracle’s current and prospective clients.S. wire fraud. unauthorized access to computers.C. violation of the Federal Computer Fraud and Abuse Act.S. 18 U. but not limited to. violation of RICO.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.C. Cal. for their enterprise software. as alleged above. loss of profits from sales or licenses to 31 COMPLAINT . conversion. 104. and violation of the Stored Communications Act. Oracle has suffered economic harm. 106. or expanded support contracts and software licenses with Oracle rather than Defendants.S. § 1962.S. These acts were undertaken by Defendants to obtain for themselves the software support contract revenue at Oracle’s expense.. causing certain current and prospective support clients to contract with Defendants instead of Oracle for their software support and maintenance and. in some cases. 103. As a result of Defendants’ acts.S. including. 102. constitutes violations of numerous state and federal statutes and codes.C.C. 105. the above-described relationships have been actually disrupted. 18 U. and conspiracy. On information and belief. fraud and related activity in connection with an access device. receipt of stolen property. Defendants’ conduct also constitutes trespass to chattels. As a direct and proximate result of Defendants’ actions. 18 U.C. renewed. copied Oracle’s intellectual and contractual property. unjust enrichment. 18 U. 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. Cal. including. This conduct. 18 U. § 1029. Defendants gained unauthorized access to Oracle’s password-protected Customer Connection support website through false or improper credentials. Penal Code § 502. Defendants’ conduct was wrongful by a measure beyond the fact of the interference itself. Penal Code § 496. but not limited to. § 1030 et seq. and without the cost of competing fairly by independently developing the same support materials.
oppressive. 112. as described above. Defendants’ interference with Oracle’s prospective economic advantage with its current and future customers. These relationships contain the probability of future economic benefit in the form of profitable support service contracts and software licenses. Oracle has an expectancy in continuing and advantageous economic relationships with current and prospective purchasers and licensees of Oracle’s support services and software. or expanded support contracts and software licenses with Oracle rather than Defendants. described above. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. 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 current and potential customers of Oracle support services and software programs. malicious. they used Oracle’s Software and Support Materials to obtain and retain for themselves software 32 COMPLAINT . Defendants knew or should have known about the economic relationship. 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. Had Defendants refrained from engaging in the unlawful and wrongful conduct described in this complaint. their actions are likely to recur and will cause Oracle irreparable injury for which there is no adequate remedy at law. was willful. 108. Instead. 107. there is a substantial probability that Oracle support customers would have initiated. Fourth Claim for Relief Negligent Interference With Prospective Economic Advantage (By Oracle Against All Defendants) 109. Defendants failed to act with reasonable care. Unless Defendants are restrained by appropriate injunctive relief. 111. Defendants’ wrongful conduct was a substantial factor in causing this harm. 110. renewed.
constitutes violations of numerous state and federal statutes and codes. and used that property to obtain and retain Oracle’s current and prospective clients. § 1029. but not limited to. 18 U. 33 COMPLAINT . conversion. including.C. Unless Defendants are restrained by appropriate injunctive relief. 18 U. This conduct. As a result of Defendants’ acts. Cal. unauthorized access to computers. for their enterprise software. wire fraud. As a direct and proximate result of Defendants’ actions. causing certain current and prospective support clients to contract with Defendants instead of Oracle for their software support and maintenance and.S. §§ 270111.S. and violation of the Stored Communications Act.S. Cal. Oracle has suffered economic harm. 18 U. Defendants’ conduct also constitutes trespass to chattels. § 1030 et seq.C. loss of profits from sales to current and potential customers of Oracle support. including. § 1343.C. 115..S. 113.C. but not limited to. maintenance. copied Oracle’s intellectual and contractual property. the above-described relationships have been actually disrupted. Defendants gained unauthorized access to Oracle’s password-protected Customer Connection support website through false or improper credentials. § 1962. 117. unjust enrichment. Defendants’ conduct was wrongful by a measure beyond the fact of the interference itself. 114. Defendants’ wrongful conduct was a substantial factor in causing this harm. 116. their actions are likely to recur and will cause Oracle irreparable injury for which there is no adequate remedy at law. and conspiracy. and software products. violation of the Federal Computer Fraud and Abuse Act. violation of RICO. receipt of stolen property.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. 18 U. Penal Code § 496.S. Penal Code § 502. as alleged above. fraud and related activity in connection with an access device. 18 U.C. in some cases.
proprietary.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 28 118. 121. In light of Defendants’ conduct. § 1343. 18 U.S.S.C. Defendants’ conduct also constitutes trespass to chattels. §§ 2701-11. Code §§ 17200. fraud and related activity in connection with an access device. & Prof. and unfair competition as defined by California Bus. all in an effort to gain unfair competitive advantage over Oracle. 18 U.C. 120. violation of RICO. unjust enrichment. 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. Penal Code § 502. and conspiracy. 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. conversion. Defendants have engaged in unlawful business acts or practices by committing acts including computer fraud. § 1029. conversion. Penal Code § 496. 119. 18 U. 122.. et seq. The acts and conduct of Defendants constitute fraudulent. interference with business relationships. trespass.S. negligent interference with prospective economic advantage.S. and other illegal acts and practices as alleged above. 18 U. §§ 1030 et seq.C. and copyrighted Software and Support Materials. 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. Defendants have improperly and unlawfully taken commercial advantage of Oracle’s investment in its confidential. Bus. wire fraud. Defendants’ conduct constitutes violations of numerous state and federal statutes and codes. 34 COMPLAINT . including. Fifth Claim for Relief Unfair Competition . but not limited to. § 1962. and violation of the Stored Communications Act.C. receipt of stolen property. 123. unauthorized access to computers.Cal. unlawful. & Prof.C. Cal. intentional interference with prospective economic advantage. violation of the Computer Fraud and Abuse Act. 18 U. Cal.
As a result of such unfair competition. including.. 125. to Defendants’ copying. 130.1 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. This property is the sole and exclusive property of Oracle. or distribution of such property. Defendants intentionally and willfully entered Oracle’s password-protected Customer Connection support website without permission and took possession of Oracle’s property. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. 126. Sixth Claim for Relief Conversion (By Oracle Against All Defendants) 127. will continue to suffer irreparable injury. retention. 128. Defendants should be compelled to disgorge and/or restore any and all revenues. earnings. unfair. and benefits they may have obtained in violation of California Business & Professions Code § 17200 et seq. or control. proprietary. Oracle has an exclusive right to possession and distribution of such property. Defendants should further be ordered to return all materials taken from Oracle. removal. Oracle’s confidential. Oracle has also suffered irreparable injury and. and should be enjoined from further unlawful. in their possession. compensation. returning the value of the stolen property itself and any revenue earned from it. Oracle at no time consented. profits. downloading. 129. custody. including. Instead of paying Oracle for the use of its property. and all copies of such. 35 COMPLAINT . expressly or impliedly. and copyrighted Software and Support Materials. all of which Oracle stored on its computer system. whereby Oracle has no adequate remedy at law. unless Defendants are enjoined from such unfair competition. Defendants’ unfair business practices have unjustly minimized Oracle’s competitive advantage and have caused and are causing Oracle to suffer damages. but not limited to. which is valuable to Oracle and vital to its continued business operations. and deceptive business practices. but not limited to.
and the Software and Support Materials on that support system. In addition. As a direct and proximate result of Defendants’ actions. Oracle has lost. Oracle is entitled to restitution of the Defendants’ ill-gotten gains. and will continue to lose. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. 137. its access-restricted internet-based support system. In addition. 133. as described above. 135. Defendants have been in knowing and unauthorized possession and control of such property since at least between September 2006 and the present. at the latest. At all times mentioned in this Complaint. 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. or in the alternative. with interest. Oracle is entitled to damages and repossession of the converted property. Allowing Defendants to retain the benefits received as a result of their wrongful acts would unjustly benefit Defendants at Oracle’s expense. profits from potential purchasers of Oracle support services and licensees of Oracle software products. Oracle is entitled to an award of the value of the property taken. in an amount to be determined at trial. and other damages in an amount to be proven at trial. 36 COMPLAINT . Defendants’ wrongful conduct was a substantial factor in causing this harm. Oracle had legal title to and actual possession of Customer Connection. 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.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 131. 132. 134. Oracle will seek its election of remedies at trial. or in the alternative. Since that time. Seventh Claim for Relief Trespass To Chattels (By Oracle Against All Defendants) 136.
Defendants will continue to commit such acts and other competitors will be encouraged to sweep Oracle’s website. damage to the functionality of Oracle’s computer system and data. Defendants’ trespass interfered with. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. 143. and damaged. Defendants’ trespass and interference proximately caused damage to Oracle. 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. 140. 139. Defendants continue to unjustly retain these benefits at the 37 COMPLAINT . computer fraud concerning. including Defendants’ interference with Oracle’s business relationships and other unfair business practices. and the Software and Support Materials housed for licensed access through Customer Connection. which took substantial time and money for Oracle to develop. Defendants caused Oracle’s property to greatly diminish in value and deprived Oracle of the intended use of its computer systems. but not limited to. including. Eighth Claim for Relief Unjust Enrichment/Restitution (By Oracle Against All Defendants) 142. Oracle is entitled to recover any and all damages it sustained as a result of such trespass. Defendants intentionally interfered with Oracle’s use or possession of both Customer Connection and Oracle’s related internal databases and systems. Defendants unjustly received benefits at the expense of Oracle through their wrongful conduct. and damage to the confidential and copyrighted nature of the information on Oracle’s website. As a result. in an amount to be determined at trial. damage to Oracle’s rights to dominion and control over its property.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. as well as Defendants’ trespass on. for which Oracle’s remedy at law is not adequate to compensate it for the injuries inflicted and threatened. and conversion of the Software and Support Materials. 141. Defendants’ trespass therefore threatens to cause irreparable harm to Oracle. the integrity and functionality of Oracle’s computer system and data.
damage. It would be unjust for Defendants to retain any value they obtained as a result of their wrongful conduct. and in conscious disregard of Oracle’s rights. but not limited to. 38 COMPLAINT . 149. computer fraud concerning. Defendants did the acts alleged pursuant to. malicious. and harm. that agreement and/or furthered the conspiracy by cooperating.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. Oracle has suffered injury. and conversion of the Software and Support Materials. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. 144. these wrongful acts was willful. including Defendants’ interference with Oracle’s business relationships and other unfair business practices. 148. and knowingly agreed and conspired with each other to engage in the alleged wrongful conduct. Ninth Claim for Relief Civil Conspiracy (By Oracle Against All Defendants) 145. Defendants’ intentional agreement to commit. 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. 147. Defendants willfully. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. as well as Defendants’ trespass on. loss. including. 146. intentionally. or adopting the acts of the others. oppressive. As a direct and proximate result of the acts in furtherance of the conspiracy. and commission of. encouraging. The wrongful conduct committed pursuant to the conspiracy was a substantial factor in causing this harm. ratifying. and in furtherance of.
and in conscious disregard of Oracle’s rights. Oracle has suffered injury. was wrongful in and of itself. damage. as well as Defendants’ trespass on. and aided and abetted such wrongful conduct. 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 of profits from sales to current and potential customers of Oracle support services and licenses to Oracle software programs. The wrongful conduct aided and abetted by the Defendants was a substantial factor in causing this harm. oppressive. 150. Defendants also aided and abetted the described wrongful conduct of the other Defendants by giving substantial assistance and/or encouragement that. Defendants had full knowledge or should have reasonably known of the true nature of the wrongful conduct of each other Defendant. 153.1 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. separately considered. including. and harm. As fully described above. As a direct and proximate result of the aiding and abetting of these acts. and conversion of the Software and Support Materials. 151. 152. by providing substantial assistance and/or encouraging the others to act. 39 COMPLAINT . Defendants’ aiding and abetting of these wrongful acts was willful. 154. loss. but not limited to. malicious. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. including interference with Oracle’s business relationships and other unfair business practices. 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. computer fraud concerning.
(d) Fraudulently accessing and intentionally trespassing on Oracle’s password-protected Customer Connection website. The amount of money due from Defendants to Oracle is unknown to Oracle and cannot be ascertained without an accounting of the income and gross profits Defendants have obtained through their wrongful and unlawful conduct. Oracle’s confidential. to a full accounting. without authorization or consent. including without limitation. agents. or using any property obtained from Oracle’s website. (2) selling. at Oracle’s expense. but not limited to: (a) Intentionally and/or negligently interfering with Oracle’s prospective economic advantage with its existing and potential customers. proprietary. Prayer For Relief WHEREFORE. willfully. and valuable 40 COMPLAINT . their officers. including without limitation the Customer Connection website. employees. and copyrighted Software and Support Materials. and. Since at least September 2006. and attorneys. in furtherance of their unlawful and deceptive scheme as described above. and unlawfully taking commercial advantage of Oracle’s investment in its Software and Support Materials. Defendants have obtained business through the use of unlawful conduct including. including data. Oracle is entitled.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. without Oracle’s authorization. distributing. internal documents. servants. therefore. Defendants have received money as a result of their misconduct. For a preliminary and permanent injunction restraining Defendants. and those in active concert or participation with any of them from: (1) accessing any Oracle restricted-access or customer website. for the purpose of sabotaging Oracle’s ability to do business and compete in the market. (b) Improperly. and copyrighted Software and Support Materials. and that some or all of such money is rightfully due to Oracle. (c) Willfully converting Oracle’s confidential. 158. proprietary. 157. Oracle respectfully prays for the following: A.
internal documents. patches. proprietary. For restitution and disgorgement of all ill-gotten gains unjustly obtained and retained by Defendants through the acts complained of here. For an Order awarding Oracle its attorneys’ fees and costs. that Defendants took from Oracle. K. fixes. including.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 updates. and other computer code. and valuable updates. 41 COMPLAINT For damages to be proven at trial. (3) removing. under oath. F. fixes. Oracle’s confidential. Court deems just and proper. intentional interference with Oracle’s prospective economic advantage. For prejudgment interest. That the Court order Defendants to pay Oracle punitive damages in a sum to be determined at trial. and other computer code. B. and other computer code. For an Order awarding Oracle such other and further relief as the . fixes. and copyrighted Software and Support Materials. including data. including data. G. setting forth in detail the manner and form in which Defendants have complied with the injunction. as set forth in this Complaint. 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. J. C. patches. and copyrighted Software and Support Materials. aiding and abetting and conspiracy. on the basis of their willful and deliberate unauthorized computer access. D. For an Order directing Defendants to return Oracle’s property. H. I. but not limited to Oracle’s confidential. patches. including. For an accounting. downloading or copying property from Oracle’s website without Oracle’s authorization. (4) otherwise engaging in acts of unfair competition and interference with Oracle’s business relationships. without limitation. and. proprietary. internal documents. and valuable updates.