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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
8. In many instances. All of these customers whose IDs SAP appropriated had one critical fact in common: they were. some users logged in with the user names of “xx” “ss” “User” and “NULL. this user information did not match anything: it was fake. SAP users effectively swept much of the contents of Oracle’s system onto SAP’s servers. email address. Indeed. Rather. an SAP America branch office location and home of its wholly-owned subsidiary SAP TN. Employing these techniques. SAP employees used the log-in IDs of multiple customers. In some 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.com” and fake phone numbers such as “7777777777” and “123 456 7897. Across its entire library of Software and Support Materials in Customer Connection. 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. SAP blended log-in information from multiple customers with fake information. Texas. like Metro Machine Corp. For example. 7. Texas IP address used to access and download Oracle’s Software and Support Materials is connected directly to SAP’s computer network. Oracle has found many examples of similar activity. to gain access to Oracle’s system under false pretexts. the access originated from an internet protocol (IP) address in Bryan. Texas. combined with phony user log-in information. These “customer users” supplied user information (such as user name. Oracle’s server logs have recorded access through this same IP address by computers labeled with SAP identifiers using SAP IP addresses. The Bryan. Oracle to date has identified more than 10. and downloaded Software and Support Materials even after the customer had dropped its support rights with Oracle.” In other cases. For example..000 unauthorized downloads of Software and Support Materials relating to hundreds of different software programs.” Others used phony email addresses like “test@testyomama. and phone number) that did not match the customer at all. 9. including the ones described above. 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. or 4 COMPLAINT .
As explained below. 1 ranked SAP. * 11. increasing Oracle’s potency as a competitor to SAP AG for enterprise applications software. 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.” Another mused. Oracle officially became a player on SAP’s turf. * * In the world of enterprise software applications. consulting. SAP AG acquired SAP TN. called Project Fusion. through SAP America. SAP AG’s hasty acquisition of SAP TN was widely perceived as a response to the new competitive threat from Oracle. (b) consulting relating to the implementation and operation of the software. new customers of SAP TN – SAP AG’s and SAP America’s software support subsidiary whose sole purpose is to compete with Oracle.” 13.D. 10. is developing a ‘super set’ of applications. SAP AG spokesman Bill Wohl vowed that SAP AG would use SAP TN to “keep the pressure on 1 “JDE” refers to J.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. As a result of this illegal activity. Oracle had previously announced that in January 2005 it would complete its acquisition of PeopleSoft. Inc. aimed at taking market share from No. this theft appears to be an essential – and illegal – part of SAP’s competitive strategy against Oracle. 12. In January 2005. SAP apparently has now warehoused an extensive library of Oracle’s proprietary. Industry observers noted this fundamental shift in the competitive landscape. an independent software support company founded by former PeopleSoft software engineers. 5 COMPLAINT . “After the acquisition of PeopleSoft earlier this year. and (c) support contracts to keep the software updated and upgraded. and support technicians. One industry analyst stated that. revenue comes from three basic activities: (a) license of the underlying software. copyrighted Software and Support Materials. SAP’s own statements confirmed it. a software company acquired by PeopleSoft. in 2003. Oracle said it has thousands of developers building the new application suite. developers. Not by coincidence. Edwards World Solutions. and support. “Oracle Corp.
the . with indications that this number may go significantly higher if traced further back in time. following: · More than 10. SAP advertised this strategy as its “Safe Passage” program. SAP appeared to focus more on growing the SAP TN sales force rather than investing in or expanding SAP TN’s tiny development team. Publicly.000 illicit downloads from Customer Connection between September 2006 and January 2007. explicitly designed to transition customers away from Oracle products and onto the SAP software platform. or even come close to it. or the day of.” In connection with the SAP TN acquisition. SAP TN’s services “form[ed] the basis of [SAP AG’s] Safe Passage initiative. Bill McDermott.” Although SAP America President and CEO. much less the 50% discount promoted by SAP. industry observers deemed the “Safe Passage” program “measurably more aggressive. crowed “There’s nothing that I love more than to win. As reported in industry publications. Bill McDermott.” and a sign that “SAP has taken the gloves off.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. 14. Nevertheless. committed to throw “a lot of additional resources” behind SAP TN (which consisted of only 37 employees in total).” 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. 15. by way of example. the 6 COMPLAINT SAP’s unlawful copying and theft includes. 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 America’s CEO. It certainly did not match Oracle’s investment in development resources. · A systematic pattern of “sweeping” Oracle’s Customer Connection support website from SAP TN servers just days before. SAP stole much of the Software and Support Materials directly from Oracle. SAP TN did not appear to have the development capability to meet the support commitments advertised in the “Safe Passage” brochures at any price. a program aimed at siphoning off valuable software maintenance revenue from Oracle and persuading Oracle customers to switch software products [to SAP].
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. 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. and theft of. and deceptive business practices that continues to this day. · On multiple occasions. and to attempt to convert these customers to SAP software applications. SAP has taken Oracle’s Software and Support Materials and apparently used them to insinuate itself into Oracle’s customer base. its many employees. 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. authorized customers or through normal access to Oracle’s Customer Connection system.” SAP has been engaged in a systematic program of unfair. the indiscriminate. · Accessing and downloading Software and Support Materials across multiple product lines in multiple lines of business available on the Customer Connection support website. Through its illegitimate and illegal business practices. In short. expiration of a new SAP TN customer’s support contract with Oracle. or in some cases on behalf of former Oracle customers with no access rights to Oracle’s Software and Support Materials whatsoever. unlawful. 7 COMPLAINT . in the purported name of customers that had never licensed those products and had no legal access to them. · The improper access to. to try to “keep the pressure on 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 16. and its customers. These illegal business practices threaten to cause irreparable harm to Oracle.
Germany. Oracle Corporation is a Delaware corporation with its principal place of business in Redwood City. 19.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. Oracle USA develops and licenses database and applications software programs and provides related services. (“PeopleSoft”) and JDE. THE PARTIES 17. State of California. 8 COMPLAINT . 18. SAP America is a Delaware corporation with its principal place of SAP AG is a German corporation with its principal place of business in business in Newtown Square. Oracle USA is a Colorado corporation duly authorized to do business in the State of California. SAP TN is a Texas corporation with its principal place of business in Bryan. with its only place of business in Redwood City. 21. Texas. 23. Oracle Corporation develops and licenses database and applications software programs and provides related services around the world. State of California. OIC is the owner of the copyrights at issue in this action. Oracle Corporation and Oracle USA are authorized to license to end users the copyrighted computer software programs and other works at issue in this action. Oracle USA is the successor to PeopleSoft USA. County of San Mateo. County of San Mateo. County of San Mateo. Directly and through its subsidiaries.. with its principal place of business in Redwood City. 20. State of California. SAP America is a wholly-owned subsidiary of SAP AG. Walldorf. Pennsylvania. Inc. 22. The corporate relationship of the three named defendants is set forth in the chart below. Oracle Corporation and Oracle USA are the licensees of the copyrights at issue in this action. SAP TN is a wholly-owned subsidiary of SAP America. OIC is a California corporation duly authorized to do business in the State of California.
25. unincorporated association. and finances the sales and promotional activities of both SAP America and SAP TN throughout the United States and in California. through its 100% ownership of SAP TN.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24. Defendants all are doing business in and/or have directed their activities at California. SAP America and SAP TN advertise. California. Similarly. inclusive.S. 27. Oracle will amend this Complaint to allege their true names and capacities when ascertained. or otherwise. or co-conspirator of the others. SAP AG (German Parent Corporation) SAP America (Wholly-owned U. employee. was the agent. representative. and specifically this judicial district. affiliate. license. and support customers in California and in this judicial district. including Does 1 through 50. alter ego. Subsidiary) Oracle is currently unaware of the true names and capacities of Does 1 through 50. partner. Subsidiary) SAP TN (Wholly-owned U. promote. SAP AG also holds an annual meeting of its Board of Directors in Palo Alto. SAP AG had both the right and the authority to control the actions of both corporations. specifically in this judicial district. corporation. At all material times. each of the Defendants. servant. By way of example only. SAP AG negotiates and enters into software license and support agreements directly within the United States and. 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. had full knowledge of and gave substantial 9 COMPLAINT . through its 100% ownership of both SAP America and SAP TN. and therefore sues these defendants by such fictitious names. At all material times. 26. at all material times. subsidiary. whether individual. SAP America had both the right and authority to control the actions of SAP TN. sell. partnership. parent.S. service. joint venturer.
employment. service.S. Power & Associates’ global certification for outstanding service and support based 10 COMPLAINT . 3-2 (c) and (d). and each is legally responsible for the acts and omissions of the others. Assignment is proper in this division under Civil L. because a substantial part of the events giving rise to the dispute occurred in this district.C.S. joint venture. VENUE 30. et seq. pursuant to 28 U. 17 U.S. a substantial part of the property that is the subject of the action is situated in this district. IV. when the relevant copyright registrations issue. 29. JURISDICTION 28. In addition.C. or conspiracy. representation. This Court has supplemental subject matter jurisdiction over the pendent state law claims under 28 U.C.R. partnership.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. § 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.S.C.D.. VI. Oracle’s Software and Support Materials 32. III. 18 U. Oracle is the world’s largest enterprise software company.. § 1030(g) and 28 U.S. § 1338. and the Court will have subjectmatter jurisdiction over those claims pursuant to 28 U. §§ 101. and the Court has personal jurisdiction over each of the parties as alleged throughout this Complaint.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. Oracle will seek to amend this Complaint to add claims for copyright infringement under the Copyright Act. Oracle’s first cause of action arises under the Computer Fraud and Abuse Act. and the first to receive J. and in doing the things alleged.S.S.C. Venue in this district is appropriate. FACTUAL ALLEGATIONS A. INTRADISTRICT ASSIGNMENT 31. § 1391. affiliation. § 1331. and this Court has subject-matter jurisdiction over this action pursuant to 18 U. each was acting within the scope of such agency. V. §§ 1030 et seq.
In addition.” To download a SAR. 41. All Software is confidential information of Oracle / PeopleSoft / JDEdwards and its use and distribution is governed by the terms of the software license agreement that is in effect between you and Oracle / PeopleSoft / JDEdwards (“License Agreement”).1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JDEdwards and/or its affiliates or suppliers. users accessing specific materials. 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. Use for any other purpose is expressly prohibited. press releases. software action requests. 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. such as a Software Application Request (“SAR”) through the SAR Search Web Application. 42. the user must click on a button indicating that it accepts these terms. These terms notify the user that the software available to download from Oracle is Oracle’s copyrighted material. agree to additional legal restrictions. and (3) no modifications of any Documents are made. provided that (1) the below copyright notice appears in all copies and that both the copyright notice and this permission notice appear. 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. The Legal Download Agreement further restricts use of documents downloaded from the website: Permission to use Documents (such as white papers. WITHOUT LIMITING THE FOREGOING. (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. 13 COMPLAINT . datasheets and FAQs) from this server (“Server”) is granted. Any reproduction or redistribution of the Software not in accordance with the License Agreement is expressly prohibited.
Oracle Threatens To Unseat SAP 43. 2004 at the trial on the Department of Justice’s unsuccessful effort to block Oracle’s acquisition of PeopleSoft. As SAP AG reeled. events unfolded at a rapid pace: eleven days after its announcement. 46. SAP AG CEO Henning Kagermann claimed that even with PeopleSoft. Oracle launched the newly-united company and unveiled. 44. As SAP America’s Vice President of Operations. 2005. But SAP AG had no answer for the business proposition the new Oracle offered.000 business applications software customers throughout the world. 45.” After the merger. Richard Knowles. 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. 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. broader product line of enterprise applications software programs to compete against SAP AG. SAP AG instead considered how to undermine Oracle. the combination revitalized Oracle overnight as a competitor in the business software applications business. and geographic and product scope.000-strong combined workforce of Oracle and PeopleSoft would provide unparalleled innovation and support to 23. size. Not only do many SAP AG customers use Oracle’s superior database software programs. testified on June 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. 14 COMPLAINT . but now Oracle offered a deeper. he even claimed to wish Oracle “good luck” in competing with SAP AG. Oracle would “not [be] a competitor which could really hurt us.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. On January 7. or intellectual property rights to.000 people joining by Webcast and phone. despite not owning any of the software code for. these same products. Rather than improve its own products and offerings. how the nearly 50. 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.
Acquiring SAP TN was not a mere investment by SAP AG. and later. but a calculated competitive move.” Mackey made Nelson an offer “he couldn’t refuse.” Aligning with SAP AG made little sense for SAP TN. Texas and founded by former PeopleSoft employees. As one industry observer put it. To retain full control over every detail of its scheme to lure away customers from Oracle. SAP AG proposed to buy SAP TN outright and make it a wholly-owned – and wholly-beholden – subsidiary.” D. 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. 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.” 49. SAP TN 47. SAP TN would eventually lose its customer base. but – with the Oracle/PeopleSoft 15 COMPLAINT .1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. JDE. just weeks before Oracle would close the PeopleSoft acquisition. 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. As one industry journalist explained. SAP TN president Andrew Nelson got “the magic phone call” from Jim Mackey. often outdated. 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. Oracle. In December 2004. 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. So SAP AG had to make the price right. however. headquartered in Bryan. As described in a glossy spread in a leading industry publication. it instead focuses on simply keeping the software up and running for an annual fee. It claimed to compete with PeopleSoft. SAP AG’s “front man for SAP AG’s mergers and acquisitions strategy. SAP AG has refused to disclose the terms of its SAP TN purchase. by providing low-cost maintenance and support services to PeopleSoft and JDE customers running assorted versions of these software programs. and to use SAP TN to do it.
” And SAP TN certainly knew its role was to achieve SAP AG’s ends: as SAP TN’s CEO. We want them to be successful. SAP would offer cut-rate pricing combined with the promise of essentially unlimited future support to former PeopleSoft and JDE support customers. 2005. On January 19. identified SAP TN as instrumental to the parent company’s “Safe Passage” program.” A month later. publicly vowed to bankroll this effort to undermine Oracle by putting “a lot of additional resources into TomorrowNow.” The Senior Vice President and Chief Operating Officer of SAP Asia Pacific. in barely a month. First. SAP would aggressively campaign to migrate those customers to an SAP enterprise software platform. in connection with converting Oracle customers to SAP support (via SAP TN). SAP TN agreed to the deal and cast its lot with SAP AG. SAP America’s CEO. Andrew Nelson. The CEOs stated the proposition more bluntly. SAP AG would try to use SAP TN as a means of “speeding-up” the migration of PeopleSoft and JDE users to SAP platforms. As SAP AG Managing Director Alan Sedghi admitted. Bill McDermott. admitted that the SAP TN acquisition was “an integral part” of SAP’s Safe Passage program. which in turn was part of SAP’s “ongoing strategy to compete with Oracle. “We're owned by 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 deal about to close – the “magic phone call” conveyed terms rich enough that. Second. ease integration with SAP NetWeaver(TM) and begin the process of innovating their businesses today. 52. Henning Kagermann. SAP America CEO Bill McDermott claimed “The SAP Safe Passage offering gives companies an affordable way to protect their current investments. 50.” 51. stated. In April 2005. SAP AG’s CEO. After the acquisition. 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. Colin Sampson. publicly indicating that SAP TN was authorized and intended to implement SAP AG’s goals. SAP TN’s new parent companies directed it to begin to implement a two-phase plan to increase SAP’s enterprise application market share.” 16 COMPLAINT . to lure the support business over. 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.
SAP AG offered maintenance support through SAP TN. As reflected on SAP AG’s website: “SAP offers Safe Passage for PeopleSoft.” SAP TN’s website confirms its acceptance and undertaking of the SAP-controlled Safe Passage program: “TomorrowNow can also provide our support services as part of the SAP Safe Passage Program. Instead. SAP AG did not simply sit back and leave the recruiting of potential Safe Passage customers to SAP TN’s sales force.” 54.” and elsewhere says that “Safe Passage maintenance and support are delivered worldwide through TomorrowNow. quality support from Oracle. technology and maintenance services. It deployed its salespeople to contact potential customers and push them to switch to SAP TN’s services. If customers declined to convert to SAP TN. JD Edwards. SAP AG’s “second wave” included “an intensive customer recruitment campaign.” To exploit the fear it intended to create. PeopleSoft and JDE customer uncertainty about the prospects for long-term. it took a hands-on approach. albeit unfounded.000 direct mail solicitations to Oracle customers. and Siebel customers – If Oracle’s options have you worried. the SAP AG sales personnel would pressure the customers to drop Oracle products outright in favor of SAP AG’s suite. These lower cost alternatives advertised by SAP AG were to come directly through SAP TN.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 53. To give teeth to these commingled sales efforts. SAP provides solutions. Beginning in January 2005. An April 2005 SAP AG press release apparently aimed to increase perceived doubt among Oracle customers by announcing a “second wave” of “Safe Passage. 55. 17 COMPLAINT . officially “bundled” with SAP AG enterprise software as a centerpiece of the Safe Passage program.” (emphasis supplied) SAP America’s website promises that “SAP and TomorrowNow can cut your maintenance costs by as much as 50% through 2015. SAP implemented Phase One immediately. offering significantly lower cost maintenance alternatives to Oracle customers running PSFT/JDE solutions” through 70. SAP sales representatives unleashed a torrent of marketing materials designed to exacerbate and leverage perceived. consider another option: SAP. To implement Phase Two of its plan (luring Oracle customers to the SAP enterprise software platform).
’s own products [the Siebel products] for a far cheaper price. SAP AG’s President of Customer Solutions and Operations. SAP AG CEO Henning Kagermann conceded that SAP had lost as much as 2% market share to Oracle. SAP grew more desperate. . By March 2006. 2005 announcement that it would acquire Siebel Systems. boasted that Safe Passage “continues to do really well. SAP America President and CEO.” SAP’s “cheaper price” (referred to elsewhere as “cut rate” support) continued at “50 cents on the dollar for maintenance fees.” 57. SAP AG’s CEO. the program it implemented partly through SAP TN.” but its services were expanded to support more Oracle product lines and a wider range of customers. By July 2006. Bill McDermott. SAP executives touted the Safe Passage program’s limited success in its first year. At the same time. In October 2005. 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. round the clock Siebel code support within a few weeks of Oracle’s acquisition announcement remained a mystery.” including because SAP AG “extended the program in order to offer it as well to Siebel 18 COMPLAINT . However. including apparently instantaneous round the clock support from SAP TN – whose engineers at that time presumably had spent virtually no time to develop Siebel support software products. SAP announced it would extend its Safe Passage program to Siebel customers. . that it will offer technical support for more of rival software maker Oracle Corp. SAP AG continued to tout the success of Safe Passage. “SAP AG plans to announce . companies and corporate cultures.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. 58. and more aggressive. maintenance services. In a July 2006 earnings call. as Oracle continued to take market share and expand its product offerings. investment protection and a clear road map to the next generation of business software. promised SAP AG would use SAP TN and the Safe Passage program to “fight for” more customers. including through its September 12.” How SAP could offer instantaneous. As reported on Forbes. SAP AG boasted in a press release that more than 200 customers had signed up for Safe Passage. technology.com after Oracle’s announcement of its impending Siebel acquisition. Léo Apotheker. curiously. and which it claimed “offers companies SAP solutions. Henning Kagermann.
Oracle Finds A Suspicious Pattern To analyze and improve on its industry leading support services. Apotheker claimed that SAP now had “a global network of [SAP TN] capabilities” – enough to “gain significant traction. even after having expanded its ranks to 150 employees. “customized ongoing tax and regulatory updates. 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 . F.” By extending the Safe Passage program to Siebel customers. could actually develop and offer the hundreds of regulatory updates. Although SAP put a brave face on its ability to compete with the increasingly potent Oracle applications offerings. 62. some industry analysts wondered whether a small company like SAP TN. To compound the puzzle. Oracle. 60. 61.” “fixes for serious issues. patches. and updates that comprise the advanced support services required by Oracle’s licensed customers. and other labor-intensive support items that a customer would need to maintain useful. patches. It was not clear how SAP TN could offer. maintains a development force of more than 15. and the logic. “30-minute response time.” “full upgrade script support. as it did on its website and its other materials. without infringing on Oracle’s intellectual property. and purported to add full support for an entirely different product line – Siebel – with a wave of its hand. optimally functioning Oracle software.” and. The SAP Solution: Stolen Passage 1. A Deal Too Good To Be True 59. most remarkably. 24x7x365” on software programs for which it had no intellectual property rights. by comparison. Oracle has now solved this puzzle. SAP continued to offer this comprehensive support to hundreds of customers at the “cut rate” of 50 cents on the dollar. SAP unlawfully accessed and copied Oracle’s Software and Support Materials. bug fixes.000 software and support engineers to create and help implement the code fixes.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. The economics. and in conjunction with opening new SAP TN offices around the world. simply did not add up.” E. To stave off the mounting competitive threat from Oracle.
Oracle noticed huge. over and over again. Oracle discovered a pattern. the support system responds by offering the customer further options. continue search” option. a user purporting to be that customer. These clicks numbered in the thousands for several customers. continue search” option. or thousands of products beyond the scope of the specific customer’s licensed products and permitted access. to take a copy of them all. Oracle Discovers The SAP Link Oracle embarked on a time-consuming and costly investigation to assess the damage done to its customer response database and fully understand the sources of the unauthorized downloads. Indeed. apparently. Given the extreme speed at which the activity occurred. 65. 63. 2. and Oracle discovered that each response – each answer by users pretending to be the customer – occurred in a matter of seconds or less. in the month before a customer’s Oracle support expired. And. Instead. these clicks could not reflect real responses from any human customers actually reading the solutions they had accessed. 64. would access Oracle’s system and download large quantities of Software and Support Materials. If the customer selects the “No. authorized use of Customer Connection. Oracle also discovered that the downloaded Software and Support Materials included internal documents not available even to licensed customers and not available through normal. Frequently. unexplained spikes in the number of customers on the online support website who had clicked the “No. 20 COMPLAINT . Oracle soon discovered that many of these “customers” had taken massive quantities of Software and Support Materials beyond their license rights. hundreds. In late 2006. 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. In the course of this investigation. with the aim of continually improving the support system for customers. Oracle regularly compiles this data to assess whether its system helped customers resolve their support issues. Some of these apparent customer users even downloaded materials after their contractual support rights had expired.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. employing the customer’s log-in credentials. including dozens.
· Not to access the customer support system if it is not the customer’s authorized and designated Oracle technical support contact. (5) Nigel Pullan. and a significant number of its employees.P. V. appear to have applied their familiarity with the Customer Connection website to directly participate in and perfect the illegal 22 COMPLAINT . Quality. International Sales. or Oracle. (4) Mel Gadd. · 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. JDE. including: (1) Andrew Nelson. Global PeopleSoft Support. · Not to directly or indirectly. V. use. North American Sales. Edwards Support. SAP TN has intimate familiarity with these important restrictions and conditions relating to Oracle’s Software and Support Materials. V. Global J. · That the customer username and password are for the customer’s sole use in accessing this support server. six list prior employment experience with PeopleSoft. distribute. such as Wade Walden. rent. · 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. V. sublicense. (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. In addition.P. relicense. (3) Laura Sweetman. SAP TN’s management. V. who is reflected as the person performing many of the downloads at issue. disclose. or lease the Software or Documentation. for third party use. or third party training. · That the Materials on the support website are confidential information subject to existing confidentiality agreements.P. President and CEO. formerly worked at PeopleSoft and JDE.D. former PeopleSoft employees who work for SAP. or any portion thereof. and (6) Shelley Nelson.P.
Smithfield Foods.S..S. Inc. Such acts constitute copyright infringement under 17 U. Distribution & Auto Service. Mortice Kern Systems. and covers too many individual violations. Texas Association of School Boards. Stora Enso. National Manufacturing. S. and in conscious disregard of Oracle’s protected intellectual property and the integrity of its computer systems.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.V. Herbert Waldman. reproduce.. Helzberg Diamonds. Oracle has uncovered unlicensed downloads linked to SAP TN on behalf of numerous customers.. B. and impose strict confidentiality requirements.C.C. Laird Plastics. Abbott Laboratories. offer for sale. Metro Machine Corp. Border Foods. Merck & Co. and distribute these works. 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. NGC Management Limited. 75. and therefore committed its theft knowingly and intentionally. § 501 and also willful and intentional copyright infringement under 17 U. Ronis. 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. OCE Technologies.. § 506. create derivative works. Fuelserv Limited. Inc. Berri Limited. With literally thousands of software programs available for licensing. 4.C. and Yazaki North America.S. Bear. Oracle does not typically obtain copyright registrations on all programs or related Software and Support Materials as it generally does not find itself in the position of having to enforce its copyrights through litigation to stop conduct constituting an intentional infringement of Oracle’s rights. Honeywell International. and taking from. Specific Examples Of SAP TN’s Unlawful Customer Downloads SAP TN’s improper access to. Grupo Costamex. VSM Group AB. display. 74. AbitibiConsolidated. including without limitation. publish.. to comprehensively detail here. 17 U. SAP TN reviewed and agreed to the terms and conditions on Oracle’s support website before proceeding. Caterpillar Elphinstone. SAP TN’s acts violated Oracle’s exclusive rights to use. By way of example 24 COMPLAINT .. §§ 101 et seq. Interbrew UK. SPX Corporation. Accordingly. Oracle’s Customer Connection website is too pervasive..A. Stearns & Co.
2007. Inc. after switching to SAP TN.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of the nature and extent of SAP’s theft. Then. “Honeywell” downloaded over 450 distinct unlicensed solutions on January 16. (“Merck”). Most of these excessive downloads came during the course of four days. Oracle sets forth below illustrative instances of SAP TN’s illegal conduct regarding a few of its customers. Over 2. 76. Many of these “Merck” downloads came directly from an IP address in Bryan. 77. the unauthorized downloads did not stop there. a user employing Honeywell’s log-in ID downloaded over 7. More than 5. In the three months prior to that date. This unlawful downloading even stretched across product families. Honeywell International (“Honeywell”) is listed on SAP TN’s website as a client. users purporting to be “Merck” logged into the Oracle support system and downloaded over 9. Honeywell. 2007 and nearly 400 more the next day. Oracle subsequently connected many of the illegal downloads to an SAP TN IP address and to SAP TN’s employee. In the approximately three and a half year period before Honeywell switched to SAP TN. Honeywell used and licensed PeopleSoft software applications. during which “Honeywell” was downloading almost 1800 solutions per day. Merck’s support rights for its JDE software products expired on January 1. But. one of the largest pharmaceutical companies in the world.000 of the Software and Support Materials taken in this period were solutions that Honeywell was not licensed to take at all. licenses and receives support for many Oracle software products. 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. Wade Walden – a former PeopleSoft employee now employed by SAP. 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 one specific library containing solutions for Enterprise One software. Users logging into Oracle’s support system with Merck’s credentials continued to download Software and Support Materials into March 2007.000 of these downloads related to JDE software products for which Merck had no license. Merck. 25 COMPLAINT .000 distinct Software and Support Materials for JDE software. Merck & Company.000 Software and Support Materials in less than two weeks in January 2007.
Homebuilder Management.” 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. users employing OCE’s credentials downloaded a large number of Oracle products relating to US Payroll. and Real Estate Management – none of which make sense coming from a European customer in support of its European business.000 distinct Software and Support Materials. SAP TN users employed fake identification information to download the Software and Support Materials. Canadian Payroll.000-plus unlicensed Software and Support Materials from Oracle. including specifically to a computer with SAP TN’s initials in the title. in some cases.” In many cases. using names such as “xx” “ss” and “NULL.000 distinct items for which OCE had no license. authorization or other right to access and download the 5.” Similar to the other customer examples.” and phone numbers such as “4444444444” and “999 999 9999. “TN-DL03. Like the other companies. From December of 2006 to January of 2007. In the months leading up to the expiration of OCE’s support rights for its Oracle products. These downloads included over 3. OCE. OCE-Technologies B. authorization.” “9999999999. “TNL-02. or other right to access and download these Software and Support Materials. such as the name “user” and phone numbers such as “123 456 7897.” and even “xxx xxx xxxx.” Neither Merck nor SAP TN had any license. and neither OCE nor SAP TN have any license. false user names) and downloaded over 12. these illegal downloads are associated with the same IP address belonging to SAP TN in Bryan. Texas. SAP TN users logged into Oracle’s support system using OCE’s credentials (and.V. and could serve no legitimate or lawful business purpose. 78. There is little chance that SAP TN intended OCE as the beneficiary of these massive sweeps.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Texas that belongs to SAP TN. (“OCE”) is located in the Netherlands and appears as a customer on SAP TN’s website. and some were traced to a computer with SAP TN’s initials in the title. 26 COMPLAINT . since OCE does not run many of the software programs to which these downloads relate. many of these “OCE” users entered phony identification information.
these users logged in using SPX credentials. 2006 were Software and Support Materials related to unlicensed Payroll software. listed on its website. In the month before Metro Machine dropped its support rights with Oracle. SPX Corporation (“SPX”) dropped all Oracle support on December 10. In addition. SPX. Nearly 400 of those downloads related to software programs that Metro Machine had not licensed from Oracle. For the nine month period prior to October 2006. Oracle has traced these illegal and unauthorized downloads to the same SAP TN IP address employed for the Honeywell downloads described above. SAP TN.” 80.000 distinct Software and Support Materials. Then.700 distinct Software and Support Materials for which SPX had no license. 2006 and became an SAP TN customer. users purporting to represent SPX accessed and downloaded over 8. SAP TN now claims to have delivered thousands of fixes and more than 800 tax and regulatory updates to Oracle’s former customers. In some cases. at SAP AG’s and SAP America’s direction. SAP Adds The Ill-Gotten Gains To Its Coffers 81. Metro Machine Corp. but used fake identification information like the name “NULL” and phone numbers like “7777777777” and “999 999 9999. G.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. Over 300 distinct downloads just on November 30.000 distinct Oracle Software and Support Materials (far more than SPX could legitimately access or use). 2007 and switched to SAP TN. These SPX downloads included over 1. SAP AG and SAP America directed this 27 COMPLAINT . illegally downloaded thousands of fixes and updates from Oracle’s restricted customer support website. and some were traced to a computer with SAP TN’s initials in the title. as reflected on SAP TN’s website. like the others. (“Metro Machine”) dropped all Oracle support effective on January 1.” Many of these SPX downloads. originated from the same IP address belonging to SAP TN. users logging into Oracle’s support system with Metro Machine’s credentials continued to download Software and Support Materials into March 2007. “tn-wts01. SPX averaged approximately eleven downloads per month from Oracle’s support system. Metro Machine. users purporting to represent Metro Machine logged onto Oracle’s support servers and downloaded nearly 6. Not coincidentally. between October and December 2006.
and related computer fraud. SAP has thereby caused significant damage to Oracle through its SAP TN subsidiary. Defendants have violated the Computer Fraud and Abuse Act. trespass on Oracle’s support website. or command and as a result intentionally causing damage without authorization to a protected computer owned by Oracle. and with intent to defraud Oracle. without authorization or by exceeding authorized access to such a computer. and by means of such conduct furthered the intended fraud and obtained one or more things of value. current.S. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. accessing a protected computer. 18 U. information. First Claim for Relief Violation of Federal Computer Fraud and Abuse Act (18 U. 28 COMPLAINT . Defendants have violated the Computer Fraud and Abuse Act. including but not limited to Oracle’s Software and Support Materials. § 1030(a)(4) by knowingly. ratified it.C. § 1030(a)(5)(A)(i) by knowingly causing the transmission of a program.C. SAP has illegally converted Oracle’s former. by intentionally accessing a computer used for interstate commerce or communication.C. without authorization or by exceeding authorized access to such a computer. 84. and by obtaining information from such a protected computer.C.S. in addition to the irreparable harm caused by Defendants’ unfair competition. and never disavowed it. interference with Oracle’s business relationships. 83. code. 18 U. Using Oracle’s own protected property to unfairly compete against and undercut Oracle. Defendants have violated the Computer Fraud and Abuse Act.S. § 1030(a)(2)(C). 85. and prospective customers and the associated license and support revenue to artificially inflate its market share.S. 18 U. §§ 1030(a)(2)(C) & (a)(4) & a(5)) (By Oracle Against All Defendants) 82.1 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.
Defendants’ unlawful access to and theft from Oracle’s computers also have caused Oracle irreparable injury. Oracle has suffered damage and loss by reason of these violations.C. fraudulently. 29 COMPLAINT .S. harm to Oracle’s data. in any event. and/or computer network. fraudulently. copying. Defendants have violated California Penal Code § 502(c)(2) by knowingly and fraudulently. Penal Code § 502 (By Oracle Against All Defendants) 90. 91. 18 U. in an amount well over $5000 aggregated over a one-year period. §§ 1030(a)(5)(A)(ii) & (iii) by intentionally accessing a protected computer without authorization. § 1030(g). a means of accessing Oracle’s computers. and without permission accessing and using Oracle’s computer services. § 1030(e)(2).S. or assisting in providing. Defendants have violated California Penal Code § 502(c)(6) by knowingly. and without permission providing. recklessly or without due regard for their actions. and without permission. and computer systems and other losses and damage in an amount to be proved at trial. taking. including. 92. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. Defendants will continue to commit such acts.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. computer system. Unless restrained and enjoined. and files from Oracle’s computers. without limitation. Defendants have violated the Computer Fraud and Abuse Act. programs. 93.Cal. computer system. 89. Second Claim for Relief Computer Data Access and Fraud Act . and making use of programs. The computer system or systems that Defendants accessed as described above constitute a “protected computer” within the meaning of 18 U. and/or computer network. accessing. Oracle’s remedy at law is not adequate to compensate it for these inflicted and threatened injuries.C. entitling Oracle to remedies including injunctive relief as provided by 18 U. causing damage to Oracle. 88.C. 87.S. but. data. Defendants have violated California Penal Code § 502(c)(3) by knowingly.
96. Oracle is therefore entitled to punitive damages. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. 97. Oracle’s computers. Had Defendants refrained from engaging in the unlawful and wrongful conduct described in this complaint. 101. fraudulently. 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. and due to the continuing threat of such injury. and without permission accessing. Oracle is also entitled to recover its reasonable attorneys’ fees pursuant to California Penal Code § 502(e). has no adequate remedy at law. 98. entitling Oracle to injunctive relief. computer system. 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. there is a 30 COMPLAINT . Oracle has also suffered irreparable injury from these acts. Defendants have violated California Penal Code § 502(c)(7) by knowingly. and/or computer network. Third Claim for Relief Intentional Interference With Prospective Economic Advantage (By Oracle Against All Defendants) 99. or causing to be accessed. Defendants have caused damage to Oracle in an amount to be proven at trial.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. Oracle has an expectancy in continuing and advantageous economic relationships with current and prospective purchasers and licensees of Oracle’s support services and software. Oracle owns the data that comprises the Software and Support Materials obtained by Defendants as alleged above. 100. 95.
unauthorized access to computers. § 1029.C.S. loss of profits from sales or licenses to 31 COMPLAINT . § 1962.S. Cal.C.. or expanded support contracts and software licenses with Oracle rather than Defendants. fraud and related activity in connection with an access device. violation of RICO.C. including. Defendants gained unauthorized access to Oracle’s password-protected Customer Connection support website through false or improper credentials. Penal Code § 496. for their enterprise software. § 1030 et seq.S. This conduct. 103. §§ 270111. including.S. Penal Code § 502.S. and without the cost of competing fairly by independently developing the same support materials. Oracle has suffered economic 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 substantial probability that Oracle support customers would have initiated. renewed. 105. the above-described relationships have been actually disrupted. 18 U. but not limited to.C. and violation of the Stored Communications Act. 102. 18 U. causing certain current and prospective support clients to contract with Defendants instead of Oracle for their software support and maintenance and. 104. Defendants’ conduct also constitutes trespass to chattels. conversion. 106. Defendants’ conduct was wrongful by a measure beyond the fact of the interference itself. and used that property to obtain and retain Oracle’s current and prospective clients. On information and belief. Cal.C. § 1343. copied Oracle’s intellectual and contractual property. constitutes violations of numerous state and federal statutes and codes. As a result of Defendants’ acts. in some cases. and conspiracy. 18 U. as alleged above. 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. but not limited to. violation of the Federal Computer Fraud and Abuse Act. 18 U. These acts were undertaken by Defendants to obtain for themselves the software support contract revenue at Oracle’s expense. unjust enrichment. wire fraud. 18 U. As a direct and proximate result of Defendants’ actions. receipt of stolen property. and ultimately to migrate such customers away from Oracle’s software programs and onto their own.
as described above. 107. Defendants knew or should have known about the economic relationship. Instead. Fourth Claim for Relief Negligent Interference With Prospective Economic Advantage (By Oracle Against All Defendants) 109. Unless Defendants are restrained by appropriate injunctive relief. Defendants failed to act with reasonable care. Defendants’ interference with Oracle’s prospective economic advantage with its current and future customers. oppressive. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. Defendants’ wrongful conduct was a substantial factor in causing this harm. 110. malicious.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. described above. Oracle has an expectancy in continuing and advantageous economic relationships with current and prospective purchasers and licensees of Oracle’s support services and software. Had Defendants refrained from engaging in the unlawful and wrongful conduct described in this complaint. 108. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. their actions are likely to recur and will cause Oracle irreparable injury for which there is no adequate remedy at law. there is a substantial probability that Oracle support customers would have initiated. 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. renewed. 112. was willful. or expanded support contracts and software licenses with Oracle rather than Defendants. they used Oracle’s Software and Support Materials to obtain and retain for themselves software 32 COMPLAINT . These relationships contain the probability of future economic benefit in the form of profitable support service contracts and software licenses. and in conscious disregard of Oracle’s rights. 111.
C. wire fraud.C.C. unauthorized access to computers. for their enterprise software. 33 COMPLAINT . As a direct and proximate result of Defendants’ actions. 116. 114. 18 U. Penal Code § 496. but not limited to.S. 115.C. copied Oracle’s intellectual and contractual property.S. violation of RICO. their actions are likely to recur and will cause Oracle irreparable injury for which there is no adequate remedy at law. Defendants’ conduct was wrongful by a measure beyond the fact of the interference itself. but not limited to. including. and used that property to obtain and retain Oracle’s current and prospective clients. Cal. constitutes violations of numerous state and federal statutes and codes. Defendants’ conduct also constitutes trespass to chattels.C. 113. Cal. in some cases.S. including. 117. conversion. violation of the Federal Computer Fraud and Abuse Act. the above-described relationships have been actually disrupted. causing certain current and prospective support clients to contract with Defendants instead of Oracle for their software support and maintenance and. unjust enrichment. as alleged above. fraud and related activity in connection with an access device.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 support contract revenue at Oracle’s expense and without the cost of competing fairly by independently developing the same support materials. receipt of stolen property. § 1029. Oracle has suffered economic harm. 18 U. Unless Defendants are restrained by appropriate injunctive relief. maintenance. and violation of the Stored Communications Act. This conduct. and software products. § 1962. Defendants’ wrongful conduct was a substantial factor in causing this harm.. 18 U. Penal Code § 502. § 1343.S. 18 U.S. Defendants gained unauthorized access to Oracle’s password-protected Customer Connection support website through false or improper credentials. § 1030 et seq. §§ 270111. 18 U. As a result of Defendants’ acts. and conspiracy. loss of profits from sales to current and potential customers of Oracle support.
120. Defendants have engaged in unlawful business acts or practices by committing acts including computer fraud. Defendants have improperly and unlawfully taken commercial advantage of Oracle’s investment in its confidential. Fifth Claim for Relief Unfair Competition .S. Code §§ 17200. all in an effort to gain unfair competitive advantage over Oracle. conversion. and unfair competition as defined by California Bus. but not limited to.C. intentional interference with prospective economic advantage. unauthorized access to computers. et seq. 18 U. §§ 2701-11. 34 COMPLAINT . 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.S. Cal. receipt of stolen property. 121.C. § 1962. 122.C. 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. unlawful. and violation of the Stored Communications Act. & Prof. Bus. and conspiracy. 18 U. interference with business relationships. 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. § 1029. and copyrighted Software and Support Materials. 123.S. and other illegal acts and practices as alleged above.S. 18 U. unjust enrichment.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 118.Cal. § 1343. fraud and related activity in connection with an access device. conversion. Defendants’ conduct also constitutes trespass to chattels. violation of RICO. 18 U. Cal. In light of Defendants’ conduct.S. Defendants’ conduct constitutes violations of numerous state and federal statutes and codes. The acts and conduct of Defendants constitute fraudulent. 18 U. Penal Code § 496. wire fraud. negligent interference with prospective economic advantage. & Prof. violation of the Computer Fraud and Abuse Act. §§ 1030 et seq..C. trespass.C. proprietary. 119. including.
which is valuable to Oracle and vital to its continued business operations. or distribution of such property. As a result of such unfair competition. Defendants’ unfair business practices have unjustly minimized Oracle’s competitive advantage and have caused and are causing Oracle to suffer damages. or control. including. Oracle at no time consented. 125. and deceptive business practices. 35 COMPLAINT . unfair. Defendants should be compelled to disgorge and/or restore any and all revenues. but not limited to. Oracle has an exclusive right to possession and distribution of such property. and benefits they may have obtained in violation of California Business & Professions Code § 17200 et seq. all of which Oracle stored on its computer system. removal. 129. downloading. Instead of paying Oracle for the use of its property. earnings. Oracle has also suffered irreparable injury and. expressly or impliedly. and copyrighted Software and Support Materials. proprietary.. custody. 126. This property is the sole and exclusive property of Oracle. retention. profits. to Defendants’ copying. including. 130. returning the value of the stolen property itself and any revenue earned from it. unless Defendants are enjoined from such unfair competition. Defendants should further be ordered to return all materials taken from Oracle. and all copies of such. in their possession. will continue to suffer irreparable injury. Sixth Claim for Relief Conversion (By Oracle Against All Defendants) 127.1 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. but not limited to. 128. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. whereby Oracle has no adequate remedy at law. and should be enjoined from further unlawful. Oracle’s confidential. Defendants intentionally and willfully entered Oracle’s password-protected Customer Connection support website without permission and took possession of Oracle’s property. compensation.
at the latest. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. 133. Oracle has lost. 132. Since that time. Oracle will seek its election of remedies at trial. Oracle is entitled to damages and repossession of the converted property. 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. Oracle is entitled to an award of the value of the property taken. Defendants have been in knowing and unauthorized possession and control of such property since at least between September 2006 and the present. with interest. or in the alternative. as described above. In addition. 36 COMPLAINT . in an amount to be determined at trial. Oracle had legal title to and actual possession of Customer Connection. and will continue to lose. and other damages in an amount to be proven at trial. Oracle is entitled to restitution of the Defendants’ ill-gotten gains.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. 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. its access-restricted internet-based support system. profits from potential purchasers of Oracle support services and licensees of Oracle software products. and the Software and Support Materials on that support system. or in the alternative. Defendants’ wrongful conduct was a substantial factor in causing this harm. Allowing Defendants to retain the benefits received as a result of their wrongful acts would unjustly benefit Defendants at Oracle’s expense. In addition. 134. As a direct and proximate result of Defendants’ actions. 135. At all times mentioned in this Complaint. Seventh Claim for Relief Trespass To Chattels (By Oracle Against All Defendants) 136.
139. Defendants intentionally interfered with Oracle’s use or possession of both Customer Connection and Oracle’s related internal databases and systems. 141. including Defendants’ interference with Oracle’s business relationships and other unfair business practices.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 138. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. damage to the functionality of Oracle’s computer system and data. Defendants caused Oracle’s property to greatly diminish in value and deprived Oracle of the intended use of its computer systems. the integrity and functionality of Oracle’s computer system and data. computer fraud concerning. and conversion of the Software and Support Materials. 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. damage to Oracle’s rights to dominion and control over its property. 143. Defendants’ trespass interfered with. Defendants unjustly received benefits at the expense of Oracle through their wrongful conduct. for which Oracle’s remedy at law is not adequate to compensate it for the injuries inflicted and threatened. but not limited to. in an amount to be determined at trial. As a result. 140. Defendants’ trespass and interference proximately caused damage to Oracle. and the Software and Support Materials housed for licensed access through Customer Connection. Defendants continue to unjustly retain these benefits at the 37 COMPLAINT . including. Defendants will continue to commit such acts and other competitors will be encouraged to sweep Oracle’s website. Eighth Claim for Relief Unjust Enrichment/Restitution (By Oracle Against All Defendants) 142. and damaged. as well as Defendants’ trespass on. 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. which took substantial time and money for Oracle to develop. Oracle is entitled to recover any and all damages it sustained as a result of such trespass.
and conversion of the Software and Support Materials. 148. but not limited to. encouraging. Ninth Claim for Relief Civil Conspiracy (By Oracle Against All Defendants) 145. 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 for Oracle’s software programs. Defendants’ intentional agreement to commit. malicious. 149. computer fraud concerning.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. these wrongful acts was willful. as well as Defendants’ trespass on. oppressive. Oracle is accordingly entitled to full restitution of all amounts in which Defendants have been unjustly enriched at Oracle’s expense. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. and knowingly agreed and conspired with each other to engage in the alleged wrongful conduct. ratifying. that agreement and/or furthered the conspiracy by cooperating. Defendants did the acts alleged pursuant to. including. It would be unjust for Defendants to retain any value they obtained as a result of their wrongful conduct. intentionally. 146. Oracle has suffered injury. Defendants willfully. As a direct and proximate result of the acts in furtherance of the conspiracy. including Defendants’ interference with Oracle’s business relationships and other unfair business practices. and harm. and in furtherance of. damage. and commission of. 38 COMPLAINT . The wrongful conduct committed pursuant to the conspiracy was a substantial factor in causing this harm. and in conscious disregard of Oracle’s rights. or adopting the acts of the others. loss. 147. 144.
Tenth Claim for Relief Aiding and Abetting (By Oracle Against All Defendants) Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. As fully described above. 150. 153. as well as Defendants’ trespass on. and conversion of the Software and Support Materials. damage. 39 COMPLAINT . computer fraud concerning. was wrongful in and of itself. including. 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. including interference with Oracle’s business relationships and other unfair business practices. and in conscious disregard of Oracle’s rights. 152. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. 151. The wrongful conduct aided and abetted by the Defendants was a substantial factor in causing this harm. loss of profits from sales to current and potential customers of Oracle support services and licenses to Oracle software programs. Defendants also aided and abetted the described wrongful conduct of the other Defendants by giving substantial assistance and/or encouragement that. 154. malicious. and harm. Oracle has suffered 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 28 155. but not limited to. and aided and abetted such wrongful conduct. loss. As a direct and proximate result of the aiding and abetting of these acts. oppressive. Defendants had full knowledge or should have reasonably known of the true nature of the wrongful conduct of each other Defendant. separately considered. by providing substantial assistance and/or encouraging the others to act.
internal documents. and valuable 40 COMPLAINT . 158. Defendants have received money as a result of their misconduct. (b) Improperly. and that some or all of such money is rightfully due to Oracle. proprietary. at Oracle’s expense. and copyrighted Software and Support Materials. in furtherance of their unlawful and deceptive scheme as described above. willfully. (d) Fraudulently accessing and intentionally trespassing on Oracle’s password-protected Customer Connection website. without Oracle’s authorization. and those in active concert or participation with any of them from: (1) accessing any Oracle restricted-access or customer website. Oracle respectfully prays for the following: A. Since at least September 2006. and. Oracle’s confidential. proprietary. but not limited to: (a) Intentionally and/or negligently interfering with Oracle’s prospective economic advantage with its existing and potential customers. and copyrighted Software and Support Materials. (2) selling. including without limitation. for the purpose of sabotaging Oracle’s ability to do business and compete in the market. Prayer For Relief WHEREFORE. their officers. and unlawfully taking commercial advantage of Oracle’s investment in its Software and Support Materials. agents. Oracle is entitled. 157. including without limitation the Customer Connection website. For a preliminary and permanent injunction restraining Defendants. or using any property obtained from Oracle’s website. and attorneys. (c) Willfully converting Oracle’s confidential. distributing. including data. servants. without authorization or consent. therefore.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 156. employees. to a full accounting. The amount of money due from Defendants to Oracle is unknown to Oracle and cannot be ascertained without an accounting of the income and gross profits Defendants have obtained through their wrongful and unlawful conduct. Defendants have obtained business through the use of unlawful conduct including.
proprietary. as set forth in this Complaint. intentional interference with Oracle’s prospective economic advantage. internal documents. including. H. including. I. (3) removing. patches. setting forth in detail the manner and form in which Defendants have complied with the injunction. J. Court deems just and proper. downloading or copying property from Oracle’s website without Oracle’s authorization. aiding and abetting and conspiracy. (4) otherwise engaging in acts of unfair competition and interference with Oracle’s business relationships. G. and other computer code. patches. and valuable updates. including data. and other computer code. and valuable updates. 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. and other computer code. For an accounting. For an Order awarding Oracle such other and further relief as the . on the basis of their willful and deliberate unauthorized computer access. that Defendants took from Oracle. B. and copyrighted Software and Support Materials. but not limited to Oracle’s confidential. C. For an Order awarding Oracle its attorneys’ fees and costs. proprietary. fixes. patches. internal documents.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 updates. For restitution and disgorgement of all ill-gotten gains unjustly obtained and retained by Defendants through the acts complained of here. That the Court order Defendants to pay Oracle punitive damages in a sum to be determined at trial. under oath. without limitation. and copyrighted Software and Support Materials. K. 41 COMPLAINT For damages to be proven at trial. fixes. For an Order directing Defendants to return Oracle’s property. For prejudgment interest. fixes. Oracle’s confidential. and. including data. D. F.
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