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BINGHAM McCUTCHEN LLP CHRISTOPHER B. HOCKETT (SBN 121539) GEOFFREY M. HOWARD (SBN 157468) ZACHARY J. ALINDER (SBN 209009) BREE HANN (SBN 215695) Three Embarcadero Center San Francisco, CA 94111-4067 Telephone: (415) 393-2000 Facsimile: (415) 393-2286 firstname.lastname@example.org email@example.com firstname.lastname@example.org email@example.com DORIAN DALEY (SBN 129049) JEFFREY S. ROSS (SBN 138172) 500 Oracle Parkway M/S 5op7 Redwood City, CA 94070 Telephone: (650) 506-4846 Facsimile: (650) 506-7114 firstname.lastname@example.org email@example.com
Attorneys for Plaintiffs
Oracle Corporation, Oracle USA, Inc., and Oracle International Corporation
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION
ORACLE CORPORATION, a Delaware corporation, ORACLE USA, INC., a Colorado corporation, and ORACLE INTERNATIONAL CORPORATION, a California corporation, v. Plaintiffs,
CASE NO. COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR: (1) VIOLATIONS OF THE COMPUTER FRAUD AND ABUSE ACT; (2) VIOLATIONS OF THE COMPUTER DATA ACCESS AND FRAUD ACT; (3) INTENTIONAL INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE; (4) NEGLIGENT INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE;
SAP AG, a German corporation, SAP AMERICA, INC., a Delaware corporation, TOMORROWNOW, INC., a Texas corporation, and DOES 1-50, inclusive, Defendants.
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(5) UNFAIR COMPETITION; (6) CONVERSION; (7) TRESPASS TO CHATTELS; (8) UNJUST ENRICHMENT / RESTITUTION; (9) CIVIL CONSPIRACY; (10) AIDING AND ABETTING; AND (11) AN ACCOUNTING. DEMAND FOR JURY TRIAL
Plaintiffs Oracle Corporation, Oracle USA, Inc. (“Oracle USA”), and Oracle International Corporation (“OIC”) (together “Oracle” or “Plaintiffs”) for their Complaint against Defendants SAP AG (“SAP AG”), SAP America, Inc. (“SAP America”), TomorrowNow, Inc. (“SAP TN”), and Does 1 through 50 (collectively referred to as “SAP” or “Defendants”), allege as follows based on their personal knowledge as for themselves, and on information and belief as to the acts of others: I. INTRODUCTION 1. This case is about corporate theft on a grand scale, committed by the
largest German software company – a conglomerate known as SAP. Oracle is a leading developer of database and applications software, and SAP is Oracle’s largest enterprise applications software competitor. 2. Oracle brings this lawsuit after discovering that SAP is engaged in
systematic, illegal access to – and taking from – Oracle’s computerized customer support systems. Through this scheme, SAP has stolen thousands of proprietary, copyrighted software products and other confidential materials that Oracle developed to service its own support customers. SAP gained repeated and unauthorized access, in many cases by use of pretextual customer log-in credentials, to Oracle’s proprietary, password-protected customer support website. From that website, SAP has copied and swept thousands of Oracle software products and other proprietary and confidential materials onto its own servers. As a result, SAP has compiled an illegal library of Oracle’s copyrighted software code and other materials. This storehouse of stolen Oracle intellectual property enables SAP to offer cut rate support services to 1 COMPLAINT
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customers who use Oracle software, and to attempt to lure them to SAP’s applications software platform and away from Oracle’s. Through this Complaint, Oracle seeks to stop SAP’s illegal intrusions and theft, to prevent SAP from using the materials it has illegally acquired to compete with Oracle, and to recover damages and attorneys’ fees. 3. In late November 2006, there occurred unusually heavy download activity
on Oracle’s password-protected customer support website for its PeopleSoft and J.D. Edwards (“JDE”) product lines. That website, called Customer Connection, permits licensed Oracle customers with active support agreements to download a wide array of copyrighted, proprietary software programs and other support materials. Oracle has invested billions of dollars in research, development, and engineering to create these materials, which include program updates, software updates, bug fixes, patches, custom solutions, and instructional documents – all copyrighted by Oracle – across the entire PeopleSoft and JDE family of software products (the “Software and Support Materials”). Customers who have contracted for support with Oracle have log-in credentials to access Customer Connection and download Software and Support Materials. However, Oracle’s support contracts limit customers’ access and download rights to Software and Support Materials pertaining to the customers’ licensed products. Customers have no contractual right to download Software and Support Materials relating to software programs they have not licensed from Oracle, or for which the customers did not purchase support rights. 4. The Software and Support Materials are a subset of the technical support
services that Oracle makes available to its customers that have licensed Oracle software programs and purchased the right to receive technical support services related to them. The full suite of technical support services (also known as “support” or “maintenance”) generally includes three types of offerings that Oracle, like most other enterprise software vendors, makes available to its licensed customers: (i) telephone or email access to Oracle’s support technicians regarding the operation of Oracle’s software; (ii) software program code for the customers’ licensed software programs which adds new functionality or features to the software (generally referred to as “software updates”), or that addresses errors or “bugs” in the software program (generally referred to as “software patches”); and (iii) “knowledge management” articles that 2 COMPLAINT
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help with problem solving and provide suggestions relating to the customer’s use of licensed software programs. Because of the complexity of enterprise software applications and the business environments in which they run, regular software updates and patches and knowledge management articles are critical components of a software maker’s support offering. For purposes of this case, Oracle’s claims against SAP only concern Oracle’s Software and Support Materials, and not Oracle’s provision of telephone or online assistance in response to customers’ support queries. 5. The access and download activity Oracle observed on its systems in late
November and December 2006 did not resemble the authorized, limited access to which its customers were entitled. Instead, SAP employees using the log-in credentials of Oracle customers with expired or soon-to-expire support rights had, in a matter of a few days or less, accessed and copied thousands of individual Software and Support Materials. For a significant number of these mass downloads, the users lacked any contractual right even to access, let alone copy, the Software and Support Materials. The downloads spanned every library in the Customer Connection support website. For example, using one customer’s credentials, SAP suddenly downloaded an average of over 1,800 items per day for four days straight (compared to that customer’s normal downloads averaging 20 per month). Other purported customers hit the Oracle site and harvested Software and Support Materials after they had cancelled all support with Oracle in favor of SAP TN. Moreover, these mass downloads captured Software and Support Materials that were clearly of no use to the “customers” in whose names they were taken. Indeed, the materials copied not only related to unlicensed products, but to entire Oracle product families that the customers had not licensed. 6. For example, in January 2007, a user on an SAP TN computer signed in as
Oracle customer Honeywell International, Inc., a Fortune 100 technology and manufacturing company, to access Oracle’s support system and copy literally thousands of Oracle’s Software and Support Materials in virtually every product library in every line of business. This copying went well beyond the products that Honeywell had licensed and to which it had authorized access. In other examples, users from SAP TN logged in using the credentials of recently 3 COMPLAINT
Oracle to date has identified more than 10. For example. 9. the access originated from an internet protocol (IP) address in Bryan. Oracle’s server logs have recorded access through this same IP address by computers labeled with SAP identifiers using SAP IP addresses. SAP employees used the log-in IDs of multiple customers. Texas IP address used to access and download Oracle’s Software and Support Materials is connected directly to SAP’s computer network. These “customer users” supplied user information (such as user name. including the ones described above. 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. This systematic theft of Oracle’s Software and Support Materials did not originate from any actual customer location. email address. Oracle has found many examples of similar activity. Texas. SAP TN is a company that purports to provide technical support services on certain versions of Oracle’s PeopleSoft and JDE software programs.000 unauthorized downloads of Software and Support Materials relating to hundreds of different software programs. All of these customers whose IDs SAP appropriated had one critical fact in common: they were. and downloaded Software and Support Materials even after the customer had dropped its support rights with Oracle. For example. this user information did not match anything: it was fake. an SAP America branch office location and home of its wholly-owned subsidiary SAP TN. combined with phony user log-in information. like Metro Machine Corp. Across its entire library of Software and Support Materials in Customer Connection. or 4 COMPLAINT . SAP users effectively swept much of the contents of Oracle’s system onto SAP’s servers. SAP blended log-in information from multiple customers with fake information.” Others used phony email addresses like “test@testyomama. 8. Employing these techniques. some users logged in with the user names of “xx” “ss” “User” and “NULL. Texas.” In other cases.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 departed customers. In many instances. 7.com” and fake phone numbers such as “7777777777” and “123 456 7897. Rather. and phone number) that did not match the customer at all. In some cases.. to gain access to Oracle’s system under false pretexts. The Bryan. Indeed.
consulting. through SAP America. One industry analyst stated that. this theft appears to be an essential – and illegal – part of SAP’s competitive strategy against Oracle. Oracle officially became a player on SAP’s turf. called Project Fusion. “After the acquisition of PeopleSoft earlier this year. Inc. and support technicians. SAP’s own statements confirmed it. SAP AG spokesman Bill Wohl vowed that SAP AG would use SAP TN to “keep the pressure on 1 “JDE” refers to J. Edwards World Solutions.D. 5 COMPLAINT . Oracle said it has thousands of developers building the new application suite. revenue comes from three basic activities: (a) license of the underlying software. 1 ranked SAP. is developing a ‘super set’ of applications. 10. Oracle had previously announced that in January 2005 it would complete its acquisition of PeopleSoft. developers. 12. 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. As explained below. “Oracle Corp. increasing Oracle’s potency as a competitor to SAP AG for enterprise applications software. In January 2005. As a result of this illegal activity.” Another mused. SAP apparently has now warehoused an extensive library of Oracle’s proprietary.” 13. Industry observers noted this fundamental shift in the competitive landscape. (b) consulting relating to the implementation and operation of the software. and support. * 11. SAP AG acquired SAP TN. SAP AG’s hasty acquisition of SAP TN was widely perceived as a response to the new competitive threat from Oracle. * * In the world of enterprise software applications. and (c) support contracts to keep the software updated and upgraded. Not by coincidence. a software company acquired by PeopleSoft. aimed at taking market share from No. in 2003. an independent software support company founded by former PeopleSoft software engineers. copyrighted Software and Support Materials.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 were just about to become. new customers of SAP TN – SAP AG’s and SAP America’s software support subsidiary whose sole purpose is to compete with Oracle.
Nevertheless. 15. or the day of. 14.000 illicit downloads from Customer Connection between September 2006 and January 2007. 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. SAP TN’s services “form[ed] the basis of [SAP AG’s] Safe Passage initiative. SAP stole much of the Software and Support Materials directly from Oracle. Publicly. crowed “There’s nothing that I love more than to win. the . the 6 COMPLAINT SAP’s unlawful copying and theft includes. As reported in industry publications. a program aimed at siphoning off valuable software maintenance revenue from Oracle and persuading Oracle customers to switch software products [to SAP]. by way of example. Bill McDermott.” In connection with the SAP TN acquisition. industry observers deemed the “Safe Passage” program “measurably more aggressive.” Although SAP America President and CEO. with indications that this number may go significantly higher if traced further back in time. 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).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. Indeed.” But win at what cost? SAP appears to have taken a short cut to equip itself to support Oracle’s software programs at half Oracle’s price. SAP appeared to focus more on growing the SAP TN sales force rather than investing in or expanding SAP TN’s tiny development team. Bill McDermott.” and a sign that “SAP has taken the gloves off. SAP America’s CEO. SAP advertised this strategy as its “Safe Passage” program. following: · More than 10. · A systematic pattern of “sweeping” Oracle’s Customer Connection support website from SAP TN servers just days before. It certainly did not match Oracle’s investment in development resources. much less the 50% discount promoted by SAP. or even come close to it. explicitly designed to transition customers away from Oracle products and onto the SAP software platform.
and its customers.” SAP has been engaged in a systematic program of unfair. · On multiple occasions. and theft of. · Accessing and downloading Software and Support Materials across multiple product lines in multiple lines of business available on the Customer Connection support website. 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.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. its many employees. SAP has taken Oracle’s Software and Support Materials and apparently used them to insinuate itself into Oracle’s customer base. expiration of a new SAP TN customer’s support contract with Oracle. 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. Oracle has no adequate remedy at law for the harm threatened and caused by these acts. clearly-marked internal proprietary Oracle support documents not available even to licensed. Through its illegitimate and illegal business practices. These illegal business practices threaten to cause irreparable harm to Oracle. · The improper access to. wholesale copying of vast libraries of available Software and Support Materials from Oracle’s Customer Connection support website through downloads too rapid to permit any real-time use of the downloaded Software and Support Material. unlawful. authorized customers or through normal access to Oracle’s Customer Connection system. or in some cases on behalf of former Oracle customers with no access rights to Oracle’s Software and Support Materials whatsoever. In short. the indiscriminate. to try to “keep the pressure on Oracle. and deceptive business practices that continues to this day. 7 COMPLAINT .
SAP America is a wholly-owned subsidiary of SAP AG. 8 COMPLAINT . with its only place of business in Redwood City. Oracle Corporation is a Delaware corporation with its principal place of business in Redwood City. State of California. 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. OIC is a California corporation duly authorized to do business in the State of California. SAP TN is a wholly-owned subsidiary of SAP America. 20. State of California. with its principal place of business in Redwood City. Germany.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. 22. Directly and through its subsidiaries. Oracle Corporation develops and licenses database and applications software programs and provides related services around the world. SAP TN is a Texas corporation with its principal place of business in Bryan. State of California. Walldorf. (“PeopleSoft”) and JDE. 23. 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.. County of San Mateo. Oracle USA develops and licenses database and applications software programs and provides related services. Oracle USA is a Colorado corporation duly authorized to do business in the State of California. County of San Mateo. County of San Mateo. 18. OIC is the owner of the copyrights at issue in this action. 21. 19. Oracle Corporation and Oracle USA are the licensees of the copyrights at issue in this action. Inc. Oracle USA is the successor to PeopleSoft USA. Pennsylvania. THE PARTIES 17.
SAP AG also holds an annual meeting of its Board of Directors in Palo Alto. sell. Subsidiary) SAP TN (Wholly-owned U. joint venturer. partner. and support customers in California and in this judicial district. or co-conspirator of the others. Subsidiary) Oracle is currently unaware of the true names and capacities of Does 1 through 50. through its 100% ownership of SAP TN. each of the Defendants. Defendants all are doing business in and/or have directed their activities at California. license. At all material times. corporation. at all material times. alter ego. parent. and specifically this judicial district. SAP AG (German Parent Corporation) SAP America (Wholly-owned U. and therefore sues these defendants by such fictitious names. Oracle will amend this Complaint to allege their true names and capacities when ascertained. Similarly. SAP AG negotiates and enters into software license and support agreements directly within the United States and. was the agent. specifically in this judicial district. At all material times. partnership. had full knowledge of and gave substantial 9 COMPLAINT . employee. SAP America had both the right and authority to control the actions of SAP TN. representative. SAP AG had both the right and the authority to control the actions of both corporations. whether individual. servant. affiliate. By way of example only. 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. 26. inclusive. through its 100% ownership of both SAP America and SAP TN. 25. 27.S. unincorporated association. SAP America and SAP TN advertise. subsidiary.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. and finances the sales and promotional activities of both SAP America and SAP TN throughout the United States and in California. California. or otherwise. including Does 1 through 50. promote. service.
S. § 1331.1 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. In addition. Venue in this district is appropriate. § 1391.D. and each is legally responsible for the acts and omissions of the others.C. and the first to receive J.S. joint venture. § 1338.S. IV. Assignment is proper in this division under Civil L. Oracle’s Software and Support Materials 32.. §§ 1030 et seq.C. 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.S. and the Court will have subjectmatter jurisdiction over those claims pursuant to 28 U. § 1030(g) and 28 U. each was acting within the scope of such agency.C.C.R. a substantial part of the property that is the subject of the action is situated in this district. Oracle will seek to amend this Complaint to add claims for copyright infringement under the Copyright Act. Power & Associates’ global certification for outstanding service and support based 10 COMPLAINT . partnership. and this Court has subject-matter jurisdiction over this action pursuant to 18 U. and in doing the things alleged. because a substantial part of the events giving rise to the dispute occurred in this district. 3-2 (c) and (d). pursuant to 28 U. VI. Oracle’s first cause of action arises under the Computer Fraud and Abuse Act. 18 U. 17 U. or conspiracy. FACTUAL ALLEGATIONS A.C. VENUE 30.S. III. employment. JURISDICTION 28. affiliation. § 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. This Court has supplemental subject matter jurisdiction over the pendent state law claims under 28 U. service. representation. §§ 101. when the relevant copyright registrations issue..S.S. and the Court has personal jurisdiction over each of the parties as alleged throughout this Complaint. et seq.C. V. INTRADISTRICT ASSIGNMENT 31. Oracle is the world’s largest enterprise software company. 29.
These terms notify the user that the software available to download from Oracle is Oracle’s copyrighted material. 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 Legal Download Agreement further restricts use of documents downloaded from the website: Permission to use Documents (such as white papers.” To download a SAR. provided that (1) the below copyright notice appears in all copies and that both the copyright notice and this permission notice appear. 42. In addition. and (3) no modifications of any Documents are made. such as a Software Application Request (“SAR”) through the SAR Search Web Application. (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. software action requests. product or upgrade announcements. COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED.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. 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. 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. 13 COMPLAINT . 41. 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. the user must click on a button indicating that it accepts these terms. Any reproduction or redistribution of the Software not in accordance with the License Agreement is expressly prohibited. Use for any other purpose is expressly prohibited. press releases. users accessing specific materials. WITHOUT LIMITING THE FOREGOING.
On January 7. broader product line of enterprise applications software programs to compete against SAP AG. at its headquarters with more than 48. SAP AG suddenly found itself in a far different competitive environment than the one in which it had grown comfortable. 45. Not only do many SAP AG customers use Oracle’s superior database software programs. but now Oracle offered a deeper. or intellectual property rights to. Richard Knowles. 2004 at the trial on the Department of Justice’s unsuccessful effort to block Oracle’s acquisition of PeopleSoft. despite not owning any of the software code for. the combination revitalized Oracle overnight as a competitor in the business software applications business. 46. One way was to hit at Oracle’s customer base – and potentially increase its own – by acquiring and bankrolling a company that claimed the ability to compete with Oracle support and maintenance services on Oracle’s own software products. SAP AG instead considered how to undermine Oracle. and geographic and product scope. But SAP AG had no answer for the business proposition the new Oracle offered. he even claimed to wish Oracle “good luck” in competing with SAP AG. As SAP AG reeled. how the nearly 50. Oracle Threatens To Unseat SAP 43. testified on June 23. Rather than improve its own products and offerings. Oracle launched the newly-united company and unveiled. Oracle would “not [be] a competitor which could really hurt us. SAP AG CEO Henning Kagermann claimed that even with PeopleSoft.000 business applications software customers throughout the world.” After the merger. 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. 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. 2005. 44. size.000 people joining by Webcast and phone. As SAP America’s Vice President of Operations. 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.000-strong combined workforce of Oracle and PeopleSoft would provide unparalleled innovation and support to 23. these same products. 14 COMPLAINT .
because to the extent SAP AG successfully undermined Oracle by having its customers move from Oracle’s software to SAP AG’s software. In December 2004. SAP Responds To Oracle Competition With Its “Safe Passage” Scheme 48. SAP AG’s “front man for SAP AG’s mergers and acquisitions strategy. SAP AG bought “another arrow in its quiver to hunt after Oracle’s customers.” Aligning with SAP AG made little sense for SAP TN.” D. SAP TN 47. but – with the Oracle/PeopleSoft 15 COMPLAINT . and later. SAP TN would eventually lose its customer base. and to use SAP TN to do it. 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. in December 2004.1 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. but a calculated competitive move. 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 AG proposed to buy SAP TN outright and make it a wholly-owned – and wholly-beholden – subsidiary. SAP AG has refused to disclose the terms of its SAP TN purchase. As one industry journalist explained. To retain full control over every detail of its scheme to lure away customers from Oracle. it instead focuses on simply keeping the software up and running for an annual fee. however.” Mackey made Nelson an offer “he couldn’t refuse. SAP TN president Andrew Nelson got “the magic phone call” from Jim Mackey.” 49. 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. headquartered in Bryan. JDE. It claimed to compete with PeopleSoft. Oracle. SAP TN was a small software services company. often outdated. Texas and founded by former PeopleSoft employees. 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. So SAP AG had to make the price right. just weeks before Oracle would close the PeopleSoft acquisition. As one industry observer put it.
50. Colin Sampson. “We're owned by SAP. Henning Kagermann. 2005.” The Senior Vice President and Chief Operating Officer of SAP Asia Pacific. SAP America CEO Bill McDermott claimed “The SAP Safe Passage offering gives companies an affordable way to protect their current investments. The CEOs stated the proposition more bluntly. SAP would aggressively campaign to migrate those customers to an SAP enterprise software platform. to lure the support business over.” 51. In April 2005. Andrew Nelson. 52.” A month later. 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. As SAP AG Managing Director Alan Sedghi admitted.” And SAP TN certainly knew its role was to achieve SAP AG’s ends: as SAP TN’s CEO. identified SAP TN as instrumental to the parent company’s “Safe Passage” program. admitted that the SAP TN acquisition was “an integral part” of SAP’s Safe Passage program. After the acquisition. SAP TN agreed to the deal and cast its lot with SAP AG. SAP AG’s top executives unveiled SAP AG’s acquisition of SAP TN as the centerpiece of its new “Safe Passage” scheme. publicly vowed to bankroll this effort to undermine Oracle by putting “a lot of additional resources into TomorrowNow. Bill McDermott. ease integration with SAP NetWeaver(TM) and begin the process of innovating their businesses today. in connection with converting Oracle customers to SAP support (via SAP TN). Second. We want them to be successful. 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 America’s CEO. publicly indicating that SAP TN was authorized and intended to implement SAP AG’s goals. First. in barely a month.” 16 COMPLAINT . SAP AG’s CEO. stated. SAP TN’s new parent companies directed it to begin to implement a two-phase plan to increase SAP’s enterprise application market share. On January 19. SAP would offer cut-rate pricing combined with the promise of essentially unlimited future support to former PeopleSoft and JDE support 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 deal about to close – the “magic phone call” conveyed terms rich enough that. at the SAP AG annual meeting.
quality support from Oracle. It deployed its salespeople to contact potential customers and push them to switch to SAP TN’s services. SAP implemented Phase One immediately. 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.” (emphasis supplied) SAP America’s website promises that “SAP and TomorrowNow can cut your maintenance costs by as much as 50% through 2015.” To exploit the fear it intended to create. 17 COMPLAINT . Beginning in January 2005. technology and maintenance services.” SAP TN’s website confirms its acceptance and undertaking of the SAP-controlled Safe Passage program: “TomorrowNow can also provide our support services as part of the SAP Safe Passage Program. To implement Phase Two of its plan (luring Oracle customers to the SAP enterprise software platform). To give teeth to these commingled sales efforts. consider another option: SAP.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 53. SAP AG offered maintenance support through SAP TN. officially “bundled” with SAP AG enterprise software as a centerpiece of the Safe Passage program. offering significantly lower cost maintenance alternatives to Oracle customers running PSFT/JDE solutions” through 70. As reflected on SAP AG’s website: “SAP offers Safe Passage for PeopleSoft. the SAP AG sales personnel would pressure the customers to drop Oracle products outright in favor of SAP AG’s suite. Instead. and Siebel customers – If Oracle’s options have you worried. 55. SAP AG’s “second wave” included “an intensive customer recruitment campaign. SAP provides solutions. If customers declined to convert to SAP TN. SAP sales representatives unleashed a torrent of marketing materials designed to exacerbate and leverage perceived.” and elsewhere says that “Safe Passage maintenance and support are delivered worldwide through TomorrowNow. PeopleSoft and JDE customer uncertainty about the prospects for long-term. These lower cost alternatives advertised by SAP AG were to come directly through SAP TN. JD Edwards. albeit unfounded. it took a hands-on approach.000 direct mail solicitations to Oracle customers.” 54.
SAP AG’s President of Customer Solutions and Operations. curiously. companies and corporate cultures. that it will offer technical support for more of rival software maker Oracle Corp. 58.’s own products [the Siebel products] for a far cheaper price.” SAP’s “cheaper price” (referred to elsewhere as “cut rate” support) continued at “50 cents on the dollar for maintenance fees. as Oracle continued to take market share and expand its product offerings.” 57. boasted that Safe Passage “continues to do really well. and more aggressive. technology. At the same time. 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. investment protection and a clear road map to the next generation of business software. SAP America President and CEO. SAP AG CEO Henning Kagermann conceded that SAP had lost as much as 2% market share to Oracle. In a July 2006 earnings call. maintenance services. SAP AG’s CEO. As reported on Forbes. In October 2005.” including because SAP AG “extended the program in order to offer it as well to Siebel 18 COMPLAINT . including through its September 12. the program it implemented partly through SAP TN. “SAP AG plans to announce .1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 56. SAP AG continued to tout the success of Safe Passage. . However. SAP AG boasted in a press release that more than 200 customers had signed up for Safe Passage. By March 2006. Henning Kagermann. SAP announced it would extend its Safe Passage program to Siebel customers. Bill McDermott. and which it claimed “offers companies SAP solutions.” 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. promised SAP AG would use SAP TN and the Safe Passage program to “fight for” more customers. . SAP grew more desperate. round the clock Siebel code support within a few weeks of Oracle’s acquisition announcement remained a mystery.” How SAP could offer instantaneous. By July 2006. 2005 announcement that it would acquire Siebel Systems. Léo Apotheker. SAP executives touted the Safe Passage program’s limited success in its first year.com after Oracle’s announcement of its impending Siebel acquisition.
A Deal Too Good To Be True 59.000 software and support engineers to create and help implement the code fixes. some industry analysts wondered whether a small company like SAP TN. 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 . most remarkably. Although SAP put a brave face on its ability to compete with the increasingly potent Oracle applications offerings. even after having expanded its ranks to 150 employees.” “fixes for serious issues. Oracle has now solved this puzzle. could actually develop and offer the hundreds of regulatory updates. To compound the puzzle. Oracle Finds A Suspicious Pattern To analyze and improve on its industry leading support services.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 customers. by comparison. and updates that comprise the advanced support services required by Oracle’s licensed customers. simply did not add up. maintains a development force of more than 15. “customized ongoing tax and regulatory updates.” E. F. 62. and other labor-intensive support items that a customer would need to maintain useful. without infringing on Oracle’s intellectual property. optimally functioning Oracle software. “30-minute response time. and the logic. It was not clear how SAP TN could offer. 24x7x365” on software programs for which it had no intellectual property rights. The SAP Solution: Stolen Passage 1. SAP unlawfully accessed and copied Oracle’s Software and Support Materials. SAP continued to offer this comprehensive support to hundreds of customers at the “cut rate” of 50 cents on the dollar.” and. and in conjunction with opening new SAP TN offices around the world. patches. and purported to add full support for an entirely different product line – Siebel – with a wave of its hand. Apotheker claimed that SAP now had “a global network of [SAP TN] capabilities” – enough to “gain significant traction.” “full upgrade script support. 61. as it did on its website and its other materials. To stave off the mounting competitive threat from Oracle. Oracle. patches. The economics. 60.” By extending the Safe Passage program to Siebel customers. bug fixes.
20 COMPLAINT . Frequently. and Oracle discovered that each response – each answer by users pretending to be the customer – occurred in a matter of seconds or less.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 customer’s problem. Oracle noticed huge. continue search” option. continue search” option. 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. unexplained spikes in the number of customers on the online support website who had clicked the “No. 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. hundreds. Indeed. 2. These clicks numbered in the thousands for several customers. In the course of this investigation. 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. Some of these apparent customer users even downloaded materials after their contractual support rights had expired. or thousands of products beyond the scope of the specific customer’s licensed products and permitted access. including dozens. a user purporting to be that customer. Oracle discovered a pattern. employing the customer’s log-in credentials. If the customer selects the “No. Oracle also discovered that the downloaded Software and Support Materials included internal documents not available even to licensed customers and not available through normal. over and over again. would access Oracle’s system and download large quantities of Software and Support Materials. Oracle regularly compiles this data to assess whether its system helped customers resolve their support issues. the support system responds by offering the customer further options. And. In late 2006. to take a copy of them all. apparently. Instead. these clicks could not reflect real responses from any human customers actually reading the solutions they had accessed. in the month before a customer’s Oracle support expired. 65. with the aim of continually improving the support system for customers. 63. 64.
P. (4) Mel Gadd. such as Wade Walden. · That the customer username and password are for the customer’s sole use in accessing this support server.P. or any portion thereof. sublicense. or lease the Software or Documentation. · 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. President and CEO.P. V. relicense. or Oracle. · 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. Edwards Support. V. formerly worked at PeopleSoft and JDE. including: (1) Andrew Nelson. V. and a significant number of its employees. former PeopleSoft employees who work for SAP. use. rent. who is reflected as the person performing many of the downloads at issue. · That the Materials on the support website are confidential information subject to existing confidentiality agreements. (3) Laura Sweetman. six list prior employment experience with PeopleSoft. or third party training. SAP TN’s management. SAP TN has intimate familiarity with these important restrictions and conditions relating to Oracle’s Software and Support Materials. JDE. (5) Nigel Pullan. · Not to directly or indirectly. for third party use.D. appear to have applied their familiarity with the Customer Connection website to directly participate in and perfect the illegal 22 COMPLAINT . distribute. Global PeopleSoft Support. In addition. (2) Bob Geib.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70.P. Quality. and (6) Shelley Nelson.P. Global J. V. disclose. · Not to access the customer support system if it is not the customer’s authorized and designated Oracle technical support contact. International Sales. North American Sales. V.
Helzberg Diamonds. Laird Plastics. 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.. Such acts constitute copyright infringement under 17 U. Ronis. Accordingly. VSM Group AB. and Yazaki North America.. 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. § 506. By way of example 24 COMPLAINT .. Caterpillar Elphinstone.V.S. NGC Management Limited. display. SPX Corporation.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.S.. Inc. Metro Machine Corp. Merck & Co. Abbott Laboratories. offer for sale. AbitibiConsolidated. Oracle has uncovered unlicensed downloads linked to SAP TN on behalf of numerous customers. 74. and distribute these works. 4. 17 U.C. National Manufacturing. 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.. Specific Examples Of SAP TN’s Unlawful Customer Downloads SAP TN’s improper access to.. Interbrew UK. B. and therefore committed its theft knowingly and intentionally. Oracle’s Customer Connection website is too pervasive. Stora Enso. S. create derivative works. SAP TN reviewed and agreed to the terms and conditions on Oracle’s support website before proceeding.. publish. Honeywell International. to comprehensively detail here. Distribution & Auto Service. and taking from. Stearns & Co. 75. Inc. Bear. SAP TN’s acts violated Oracle’s exclusive rights to use. OCE Technologies. Herbert Waldman. reproduce. Grupo Costamex. Mortice Kern Systems. § 501 and also willful and intentional copyright infringement under 17 U. Border Foods.C. Smithfield Foods. With literally thousands of software programs available for licensing. §§ 101 et seq. Fuelserv Limited. Berri Limited. and in conscious disregard of Oracle’s protected intellectual property and the integrity of its computer systems. Texas Association of School Boards.S. and covers too many individual violations. and impose strict confidentiality requirements. including without limitation.C.A.
it averaged just over 20 downloads of Software and Support Materials per month. Merck & Company. In one specific library containing solutions for Enterprise One software.000 Software and Support Materials in less than two weeks in January 2007. but Oracle discovered users downloading JDE products with Honeywell’s credentials. Honeywell. More than 5. during which “Honeywell” was downloading almost 1800 solutions per day. 76. 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. after switching to SAP TN. Over 2.1 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. Then. Merck. one of the largest pharmaceutical companies in the world. 2007 and nearly 400 more the next day. Users logging into Oracle’s support system with Merck’s credentials continued to download Software and Support Materials into March 2007. “Honeywell” downloaded over 450 distinct unlicensed solutions on January 16. 25 COMPLAINT . This unlawful downloading even stretched across product families. Many of these “Merck” downloads came directly from an IP address in Bryan. 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 used and licensed PeopleSoft software applications. Most of these excessive downloads came during the course of four days.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. Oracle sets forth below illustrative instances of SAP TN’s illegal conduct regarding a few of its customers. a user employing Honeywell’s log-in ID downloaded over 7. licenses and receives support for many Oracle software products. the unauthorized downloads did not stop there. Inc. 77. 2007. Merck’s support rights for its JDE software products expired on January 1. Honeywell International (“Honeywell”) is listed on SAP TN’s website as a client. Oracle subsequently connected many of the illegal downloads to an SAP TN IP address and to SAP TN’s employee. (“Merck”). users purporting to be “Merck” logged into the Oracle support system and downloaded over 9. But. Wade Walden – a former PeopleSoft employee now employed by SAP. In the three months prior to that date.
SAP TN users employed fake identification information to download the Software and Support Materials.000 distinct Software and Support Materials. authorization. and neither OCE nor SAP TN have any license. (“OCE”) is located in the Netherlands and appears as a customer on SAP TN’s website.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.000-plus unlicensed Software and Support Materials from Oracle. 26 COMPLAINT . Like the other companies.” In many cases. and Real Estate Management – none of which make sense coming from a European customer in support of its European business. in some cases. and some were traced to a computer with SAP TN’s initials in the title.” This systematic sweep of products across numerous licensed and unlicensed Oracle product lines and libraries dramatically exceeded the access for which OCE (and SAP TN acting on its behalf) had any right or authority. OCE-Technologies B. and could serve no legitimate or lawful business purpose. since OCE does not run many of the software programs to which these downloads relate.” Neither Merck nor SAP TN had any license. “TN-DL03. Homebuilder Management. these illegal downloads are associated with the same IP address belonging to SAP TN in Bryan. These downloads included over 3. “TNL-02. There is little chance that SAP TN intended OCE as the beneficiary of these massive sweeps. such as the name “user” and phone numbers such as “123 456 7897. SAP TN users logged into Oracle’s support system using OCE’s credentials (and. 78. Texas.” and even “xxx xxx xxxx. users employing OCE’s credentials downloaded a large number of Oracle products relating to US Payroll.” Similar to the other customer examples. including specifically to a computer with SAP TN’s initials in the title.” “9999999999. From December of 2006 to January of 2007.” and phone numbers such as “4444444444” and “999 999 9999. or other right to access and download these Software and Support Materials. false user names) and downloaded over 12. authorization or other right to access and download the 5. using names such as “xx” “ss” and “NULL.V. In the months leading up to the expiration of OCE’s support rights for its Oracle products. many of these “OCE” users entered phony identification information. Canadian Payroll. OCE.000 distinct items for which OCE had no license.
2007 and switched to SAP TN. SAP TN now claims to have delivered thousands of fixes and more than 800 tax and regulatory updates to Oracle’s former customers. Over 300 distinct downloads just on November 30. like the others. users purporting to represent Metro Machine logged onto Oracle’s support servers and downloaded nearly 6.” Many of these SPX downloads. at SAP AG’s and SAP America’s direction.000 distinct Software and Support Materials. SPX. SAP AG and SAP America directed this 27 COMPLAINT . 2006 and became an SAP TN customer. SAP Adds The Ill-Gotten Gains To Its Coffers 81. Oracle has traced these illegal and unauthorized downloads to the same SAP TN IP address employed for the Honeywell downloads described above. In addition. SAP TN. and some were traced to a computer with SAP TN’s initials in the title. G. In some cases. listed on its website. as reflected on SAP TN’s website.700 distinct Software and Support Materials for which SPX had no license.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.” 80. “tn-wts01. illegally downloaded thousands of fixes and updates from Oracle’s restricted customer support website. users purporting to represent SPX accessed and downloaded over 8. Not coincidentally. Nearly 400 of those downloads related to software programs that Metro Machine had not licensed from Oracle. users logging into Oracle’s support system with Metro Machine’s credentials continued to download Software and Support Materials into March 2007. 2006 were Software and Support Materials related to unlicensed Payroll software. SPX averaged approximately eleven downloads per month from Oracle’s support system. Then. Metro Machine. For the nine month period prior to October 2006.000 distinct Oracle Software and Support Materials (far more than SPX could legitimately access or use). between October and December 2006. In the month before Metro Machine dropped its support rights with Oracle. originated from the same IP address belonging to SAP TN. SPX Corporation (“SPX”) dropped all Oracle support on December 10. These SPX downloads included over 1. Metro Machine Corp. these users logged in using SPX credentials. (“Metro Machine”) dropped all Oracle support effective on January 1. but used fake identification information like the name “NULL” and phone numbers like “7777777777” and “999 999 9999.
or command and as a result intentionally causing damage without authorization to a protected computer owned by Oracle.C.C. § 1030(a)(4) by knowingly. 83. and prospective customers and the associated license and support revenue to artificially inflate its market share. and never disavowed it.S.S. SAP has illegally converted Oracle’s former. and related computer fraud. 18 U.S. and by obtaining information from such a protected computer. Defendants have violated the Computer Fraud and Abuse Act. 85. including but not limited to Oracle’s Software and Support Materials. § 1030(a)(5)(A)(i) by knowingly causing the transmission of a program. without authorization or by exceeding authorized access to such a computer.S. 18 U. information. First Claim for Relief Violation of Federal Computer Fraud and Abuse Act (18 U. 18 U. interference with Oracle’s business relationships. current. accessing a protected computer. and by means of such conduct furthered the intended fraud and obtained one or more things of value.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 download scheme. 28 COMPLAINT . in addition to the irreparable harm caused by Defendants’ unfair competition. without authorization or by exceeding authorized access to such a computer.C. by intentionally accessing a computer used for interstate commerce or communication. §§ 1030(a)(2)(C) & (a)(4) & a(5)) (By Oracle Against All Defendants) 82. ratified it. SAP has thereby caused significant damage to Oracle through its SAP TN subsidiary. § 1030(a)(2)(C). code. and with intent to defraud Oracle. Using Oracle’s own protected property to unfairly compete against and undercut Oracle. trespass on Oracle’s support website. 84. Defendants have violated the Computer Fraud and Abuse Act. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here.C. Defendants have violated the Computer Fraud and Abuse Act.
S. Penal Code § 502 (By Oracle Against All Defendants) 90. Defendants have violated California Penal Code § 502(c)(2) by knowingly and fraudulently. § 1030(g). computer system. §§ 1030(a)(5)(A)(ii) & (iii) by intentionally accessing a protected computer without authorization. a means of accessing Oracle’s computers. copying.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. Second Claim for Relief Computer Data Access and Fraud Act . and/or computer network. and making use of programs. taking. or assisting in providing. 18 U. Oracle has suffered damage and loss by reason of these violations. Unless restrained and enjoined.Cal. without limitation. 92. 87. in any event. and without permission providing. accessing.S. Defendants will continue to commit such acts. entitling Oracle to remedies including injunctive relief as provided by 18 U. Defendants have violated California Penal Code § 502(c)(3) by knowingly. but. 88. fraudulently. data. Defendants’ unlawful access to and theft from Oracle’s computers also have caused Oracle irreparable injury. Defendants have violated California Penal Code § 502(c)(6) by knowingly.C. 89. 29 COMPLAINT . 91. and without permission. harm to Oracle’s data. and/or computer network.S. and computer systems and other losses and damage in an amount to be proved at trial. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here.C. in an amount well over $5000 aggregated over a one-year period. Defendants have violated the Computer Fraud and Abuse Act.C. recklessly or without due regard for their actions. programs. and without permission accessing and using Oracle’s computer services. § 1030(e)(2). 93. The computer system or systems that Defendants accessed as described above constitute a “protected computer” within the meaning of 18 U. including. Oracle’s remedy at law is not adequate to compensate it for these inflicted and threatened injuries. and files from Oracle’s computers. fraudulently. computer system. causing damage to 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 94. 96. Defendants have caused damage to Oracle in an amount to be proven at trial. and/or computer network. Oracle has an expectancy in continuing and advantageous economic relationships with current and prospective purchasers and licensees of Oracle’s support services and software. has no adequate remedy at law. and due to the continuing threat of such injury. and without permission accessing. there is a 30 COMPLAINT . Third Claim for Relief Intentional Interference With Prospective Economic Advantage (By Oracle Against All Defendants) 99. 98. 97. 101. computer system. 100. These relationships contained the probability of future economic benefit in the form of profitable support service contracts and software licenses. As a direct and proximate result of Defendants’ unlawful conduct within the meaning of California Penal Code § 502. 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. entitling Oracle to injunctive relief. Oracle has also suffered irreparable injury from these acts. Oracle is also entitled to recover its reasonable attorneys’ fees pursuant to California Penal Code § 502(e). Oracle is informed and believes that the aforementioned acts of the Defendants were willful and malicious in that Defendants’ acts described above were done with the deliberate intent to injure Oracle’s business and improve its own. 95. Oracle’s computers. Oracle is therefore entitled to punitive damages. or causing to be accessed. Oracle owns the data that comprises the Software and Support Materials obtained by Defendants as alleged above. fraudulently. Had Defendants refrained from engaging in the unlawful and wrongful conduct described in this complaint.
loss of profits from sales or licenses to 31 COMPLAINT . Penal Code § 502. wire fraud. but not limited to.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. 18 U. 102. Defendants’ conduct also constitutes trespass to chattels. in some cases. and violation of the Stored Communications Act. As a direct and proximate result of Defendants’ actions. 105. 104. Defendants’ conduct was wrongful by a measure beyond the fact of the interference itself. as alleged above. including. 18 U. unjust enrichment. for their enterprise software. § 1029. § 1030 et seq. 18 U..S.C. constitutes violations of numerous state and federal statutes and codes. Cal. 18 U. violation of the Federal Computer Fraud and Abuse Act. As a result of Defendants’ acts. § 1962.C.C. or expanded support contracts and software licenses with Oracle rather than Defendants. including. the above-described relationships have been actually disrupted. 103. 18 U. On information and belief. Penal Code § 496.S. and ultimately to migrate such customers away from Oracle’s software programs and onto their own.S. and without the cost of competing fairly by independently developing the same support materials. §§ 270111. and conspiracy. These acts were undertaken by Defendants to obtain for themselves the software support contract revenue at Oracle’s expense.C.S.C. unauthorized access to computers. This conduct. causing certain current and prospective support clients to contract with Defendants instead of Oracle for their software support and maintenance and. 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. fraud and related activity in connection with an access device. copied Oracle’s intellectual and contractual property. Defendants gained unauthorized access to Oracle’s password-protected Customer Connection support website through false or improper credentials. and used that property to obtain and retain Oracle’s current and prospective clients. violation of RICO. Cal. receipt of stolen property. 106. but not limited to. renewed. § 1343. conversion. Oracle has suffered economic harm.
Had Defendants refrained from engaging in the unlawful and wrongful conduct described in this complaint. as described above. These relationships contain the probability of future economic benefit in the form of profitable support service contracts and software licenses. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. or expanded support contracts and software licenses with Oracle rather than Defendants. 107. Fourth Claim for Relief Negligent Interference With Prospective Economic Advantage (By Oracle Against All Defendants) 109. they used Oracle’s Software and Support Materials to obtain and retain for themselves software 32 COMPLAINT . 110. Defendants failed to act with reasonable care. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. described above. their actions are likely to recur and will cause Oracle irreparable injury for which there is no adequate remedy at law. Unless Defendants are restrained by appropriate injunctive relief. was willful. oppressive. malicious. renewed. and in conscious disregard of Oracle’s rights. Instead. there is a substantial probability that Oracle support customers would have initiated. 111. Defendants’ interference with Oracle’s prospective economic advantage with its current and future customers. 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. Defendants’ wrongful conduct was a substantial factor in causing this harm. Oracle has an expectancy in continuing and advantageous economic relationships with current and prospective purchasers and licensees of Oracle’s support services and software.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 current and potential customers of Oracle support services and software programs. 108. 112.
C. 116.S.S. violation of RICO. Defendants gained unauthorized access to Oracle’s password-protected Customer Connection support website through false or improper credentials. Oracle has suffered economic harm. and used that property to obtain and retain Oracle’s current and prospective clients. 18 U. and software products. 18 U. and conspiracy. wire fraud. violation of the Federal Computer Fraud and Abuse Act. § 1029. including. for their enterprise 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 support contract revenue at Oracle’s expense and without the cost of competing fairly by independently developing the same support materials. as alleged above. 113.S. but not limited to. Defendants’ wrongful conduct was a substantial factor in causing this harm. and violation of the Stored Communications Act. unauthorized access to computers.C. 115. §§ 270111. 18 U.C. causing certain current and prospective support clients to contract with Defendants instead of Oracle for their software support and maintenance and. Unless Defendants are restrained by appropriate injunctive relief. This conduct. 117. § 1343. their actions are likely to recur and will cause Oracle irreparable injury for which there is no adequate remedy at law. receipt of stolen property. unjust enrichment. loss of profits from sales to current and potential customers of Oracle support. 114. maintenance. copied Oracle’s intellectual and contractual property. Penal Code § 496. including. Penal Code § 502. conversion.S.S. constitutes violations of numerous state and federal statutes and codes. the above-described relationships have been actually disrupted. Cal. Defendants’ conduct was wrongful by a measure beyond the fact of the interference itself. As a result of Defendants’ acts.C. 33 COMPLAINT . fraud and related activity in connection with an access device.C. 18 U. As a direct and proximate result of Defendants’ actions. § 1030 et seq. in some cases. 18 U. Cal. Defendants’ conduct also constitutes trespass to chattels. but not limited to. § 1962..
negligent interference with prospective economic advantage. 121. Defendants have improperly and unlawfully taken commercial advantage of Oracle’s investment in its confidential. 18 U. it would be inequitable to allow Defendants to retain the benefit of the funds obtained though the unauthorized and unlawful use of Oracle’s property.C. receipt of stolen property. violation of the Computer Fraud and Abuse Act. Cal. trespass.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. Defendants have engaged in unlawful business acts or practices by committing acts including computer fraud. 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. § 1029. including.S. wire fraud. 18 U. 123. Defendants’ conduct constitutes violations of numerous state and federal statutes and codes. interference with business relationships.S. and unfair competition as defined by California Bus. unauthorized access to computers.C.S. all in an effort to gain unfair competitive advantage over Oracle. 18 U. The acts and conduct of Defendants constitute fraudulent. conversion.C. violation of RICO.C. and violation of the Stored Communications Act. Code §§ 17200. but not limited to.C. fraud and related activity in connection with an access device. & Prof. conversion. § 1343. unlawful. In light of Defendants’ conduct. and copyrighted Software and Support Materials. § 1962. and conspiracy. proprietary. 122. Penal Code § 496. et seq. Penal Code § 502. unjust enrichment. Fifth Claim for Relief Unfair Competition . §§ 2701-11. 119. 18 U. §§ 1030 et seq.Cal. Cal. intentional interference with prospective economic advantage. Code § 17200 (By Oracle Against All Defendants) Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here.. and other illegal acts and practices as alleged above. Defendants’ conduct also constitutes trespass to chattels.S. Bus. 34 COMPLAINT .S. 18 U. & Prof. 120.
will continue to suffer irreparable injury. proprietary. unfair. in their possession. This property is the sole and exclusive property of Oracle. Oracle has also suffered irreparable injury and. including. earnings.. removal. downloading. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. Defendants should further be ordered to return all materials taken from Oracle. or control. Oracle’s confidential. returning the value of the stolen property itself and any revenue earned from it. but not limited to. 130. Oracle has an exclusive right to possession and distribution 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 28 124. profits. or distribution of such property. and should be enjoined from further unlawful. Defendants’ unfair business practices have unjustly minimized Oracle’s competitive advantage and have caused and are causing Oracle to suffer damages. 128. Instead of paying Oracle for the use of its property. 129. whereby Oracle has no adequate remedy at law. compensation. 35 COMPLAINT . Defendants should be compelled to disgorge and/or restore any and all revenues. and copyrighted Software and Support Materials. As a result of such unfair competition. expressly or impliedly. and benefits they may have obtained in violation of California Business & Professions Code § 17200 et seq. Defendants intentionally and willfully entered Oracle’s password-protected Customer Connection support website without permission and took possession of Oracle’s property. unless Defendants are enjoined from such unfair competition. and all copies of such. to Defendants’ copying. but not limited to. and deceptive business practices. which is valuable to Oracle and vital to its continued business operations. 125. Oracle at no time consented. retention. all of which Oracle stored on its computer system. Sixth Claim for Relief Conversion (By Oracle Against All Defendants) 127. 126. custody. including.
135. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. and other damages in an amount to be proven at trial. 132. profits from potential purchasers of Oracle support services and licensees of Oracle software products. At all times mentioned in this Complaint. Oracle will seek its election of remedies at trial. Seventh Claim for Relief Trespass To Chattels (By Oracle Against All Defendants) 136. 133. 137. Defendants’ improper assumption and exercise of dominion and control over Oracle’s property and their likely sale and distribution of the same has and will continue to interfere with and diminish Oracle’s rights in that property. As a direct and proximate result of Defendants’ actions. 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. its access-restricted internet-based support system. In addition. Since that time. 36 COMPLAINT . with interest. and will continue to lose. 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. Oracle is entitled to an award of the value of the property taken. 134. or in the alternative. Oracle is entitled to damages and repossession of the converted property. as described above. Oracle has lost. or in the alternative. Defendants’ wrongful conduct was a substantial factor in causing this harm. In addition.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 131. in an amount to be determined 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. and the Software and Support Materials on that support system. Oracle had legal title to and actual possession of Customer Connection.
potentially to the point of denying effective access to Oracle’s customers and preventing Oracle from using its systems and data for their intended purpose. Oracle 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. the integrity and functionality of Oracle’s computer system and data. Defendants intentionally interfered with Oracle’s use or possession of both Customer Connection and Oracle’s related internal databases and systems. and damaged. damage to Oracle’s rights to dominion and control over its property. Defendants’ trespass interfered with. damage to the functionality of Oracle’s computer system and data. Oracle is entitled to recover any and all damages it sustained as a result of such trespass. Defendants caused Oracle’s property to greatly diminish in value and deprived Oracle of the intended use of its computer systems. Defendants’ trespass and interference proximately caused damage to Oracle. Defendants’ trespass therefore threatens to cause irreparable harm to Oracle. and damage to the confidential and copyrighted nature of the information on Oracle’s website.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 138. and the Software and Support Materials housed for licensed access through Customer Connection. for which Oracle’s remedy at law is not adequate to compensate it for the injuries inflicted and threatened. Defendants will continue to commit such acts and other competitors will be encouraged to sweep Oracle’s website. which took substantial time and money for Oracle to develop. 143. 139. 141. in an amount to be determined at trial. Eighth Claim for Relief Unjust Enrichment/Restitution (By Oracle Against All Defendants) 142. and conversion of the Software and Support Materials. Defendants continue to unjustly retain these benefits at the 37 COMPLAINT . including. computer fraud concerning. including Defendants’ interference with Oracle’s business relationships and other unfair business practices. Defendants unjustly received benefits at the expense of Oracle through their wrongful conduct. but not limited to. 140. As a result.
damage. encouraging. but not limited to. including Defendants’ interference with Oracle’s business relationships and other unfair business practices. these wrongful acts was willful. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. Oracle is accordingly entitled to full restitution of all amounts in which Defendants have been unjustly enriched at Oracle’s expense. loss of profits from sales to current and potential customers of Oracle support services and licenses for Oracle’s software programs. Ninth Claim for Relief Civil Conspiracy (By Oracle Against All Defendants) 145. 38 COMPLAINT . and in furtherance of. and in conscious disregard of Oracle’s rights. The wrongful conduct committed pursuant to the conspiracy was a substantial factor in causing this harm. As a direct and proximate result of the acts in furtherance of the conspiracy. It would be unjust for Defendants to retain any value they obtained as a result of their wrongful conduct. and conversion of the Software and Support Materials. or adopting the acts of the others. that agreement and/or furthered the conspiracy by cooperating. intentionally. 148. and knowingly agreed and conspired with each other to engage in the alleged wrongful conduct. malicious. Defendants’ intentional agreement to commit. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. 144. and commission of. as well as Defendants’ trespass on. Defendants did the acts alleged pursuant to. Defendants willfully. Oracle has suffered injury. 149. 147. including. oppressive. ratifying. 146. and harm.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 expense of Oracle. loss. computer fraud concerning.
Defendants also aided and abetted the described wrongful conduct of the other Defendants by giving substantial assistance and/or encouragement that. As fully described above. Defendants had full knowledge or should have reasonably known of the true nature of the wrongful conduct of each other Defendant. 152. including. The wrongful conduct aided and abetted by the Defendants was a substantial factor in causing this harm. was wrongful in and of itself. damage. computer fraud concerning. by providing substantial assistance and/or encouraging the others to act. As a direct and proximate result of the aiding and abetting of these acts. 153. 151. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. 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. Defendants’ aiding and abetting of these wrongful acts was willful. malicious. loss. separately considered. 154. but not limited to. 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. and harm. Oracle has suffered injury. oppressive. and aided and abetted such wrongful conduct. 150. and conversion of the Software and Support Materials.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 155. and in conscious disregard of Oracle’s rights. including interference with Oracle’s business relationships and other unfair business practices. as well as Defendants’ trespass on. 39 COMPLAINT . loss of profits from sales to current and potential customers of Oracle support services and licenses to Oracle software programs.
including without limitation the Customer Connection website. including data. and copyrighted Software and Support Materials. their officers. for the purpose of sabotaging Oracle’s ability to do business and compete in the market. 157. Oracle’s confidential. agents. Since at least September 2006. Defendants have received money as a result of their misconduct. and valuable 40 COMPLAINT . but not limited to: (a) Intentionally and/or negligently interfering with Oracle’s prospective economic advantage with its existing and potential customers. to a full accounting. (d) Fraudulently accessing and intentionally trespassing on Oracle’s password-protected Customer Connection website. and copyrighted Software and Support Materials. servants. Oracle is entitled. without Oracle’s authorization. For a preliminary and permanent injunction restraining Defendants. in furtherance of their unlawful and deceptive scheme as described above. or using any property obtained from Oracle’s website. 158. including without limitation. distributing. Oracle respectfully prays for the following: A. therefore. proprietary. Prayer For Relief WHEREFORE. and that some or all of such money is rightfully due to Oracle. without authorization or consent. (b) Improperly. willfully. proprietary. and those in active concert or participation with any of them from: (1) accessing any Oracle restricted-access or customer website. internal documents. (2) selling. Defendants have obtained business through the use of unlawful conduct 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 28 156. The amount of money due from Defendants to Oracle is unknown to Oracle and cannot be ascertained without an accounting of the income and gross profits Defendants have obtained through their wrongful and unlawful conduct. employees. at Oracle’s expense. and attorneys. (c) Willfully converting Oracle’s confidential. and. and unlawfully taking commercial advantage of Oracle’s investment in its Software and Support Materials.
but not limited to Oracle’s confidential. internal documents. B. including. on the basis of their willful and deliberate unauthorized computer access. G. For an Order awarding Oracle such other and further relief as the . fixes. C. patches. and. and other computer code. fixes. That the Court order Defendants to pay Oracle punitive damages in a sum to be determined at trial. internal documents. proprietary. fixes. For an Order directing Defendants to return Oracle’s property. and copyrighted Software and Support Materials. under oath. including data. For an accounting. and other computer code. J. (4) otherwise engaging in acts of unfair competition and interference with Oracle’s business relationships. For prejudgment interest. K. without limitation. proprietary. and copyrighted Software and Support Materials. and valuable updates. patches. including data. and valuable updates.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 updates. 41 COMPLAINT For damages to be proven at trial. (3) removing. that Defendants took from Oracle. 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. H. including. intentional interference with Oracle’s prospective economic advantage. patches. For an Order awarding Oracle its attorneys’ fees and costs. setting forth in detail the manner and form in which Defendants have complied with the injunction. aiding and abetting and conspiracy. I. as set forth in this Complaint. For restitution and disgorgement of all ill-gotten gains unjustly obtained and retained by Defendants through the acts complained of here. and other computer code. Oracle’s confidential. Court deems just and proper. F. downloading or copying property from Oracle’s website without Oracle’s authorization. D.