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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
like Metro Machine Corp. one user name connected to an SAP IP address appears to have logged in using the credentials of seven different customers in a span of just 15 days – all from SAP computers in Bryan.” Others used phony email addresses like “test@testyomama. combined with phony user log-in information. For example. SAP TN is a company that purports to provide technical support services on certain versions of Oracle’s PeopleSoft and JDE software programs. the access originated from an internet protocol (IP) address in Bryan. Texas. and phone number) that did not match the customer at all.com” and fake phone numbers such as “7777777777” and “123 456 7897.000 unauthorized downloads of Software and Support Materials relating to hundreds of different software programs. SAP blended log-in information from multiple customers with fake information. The Bryan. This systematic theft of Oracle’s Software and Support Materials did not originate from any actual customer location. 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. Oracle’s server logs have recorded access through this same IP address by computers labeled with SAP identifiers using SAP IP addresses. Oracle has found many examples of similar activity.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. to gain access to Oracle’s system under false pretexts. some users logged in with the user names of “xx” “ss” “User” and “NULL. These “customer users” supplied user information (such as user name. 8. Across its entire library of Software and Support Materials in Customer Connection.. In some cases. and downloaded Software and Support Materials even after the customer had dropped its support rights with Oracle. email address. Employing these techniques. Indeed. In many instances. All of these customers whose IDs SAP appropriated had one critical fact in common: they were. Rather. including the ones described above. Oracle to date has identified more than 10. SAP employees used the log-in IDs of multiple customers. 7. For example.” In other cases. Texas IP address used to access and download Oracle’s Software and Support Materials is connected directly to SAP’s computer network. or 4 COMPLAINT . an SAP America branch office location and home of its wholly-owned subsidiary SAP TN. 9. Texas.
D. developers. * * In the world of enterprise software applications. Industry observers noted this fundamental shift in the competitive landscape. 10.” Another mused. revenue comes from three basic activities: (a) license of the underlying software. One industry analyst stated that. Not by coincidence. In January 2005. consulting. and support. As a result of this illegal activity. a software company acquired by PeopleSoft. SAP’s own statements confirmed it. 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. Oracle said it has thousands of developers building the new application suite. 5 COMPLAINT . and (c) support contracts to keep the software updated and upgraded. (b) consulting relating to the implementation and operation of the software. SAP AG spokesman Bill Wohl vowed that SAP AG would use SAP TN to “keep the pressure on 1 “JDE” refers to J. copyrighted Software and Support Materials. 1 ranked SAP. “After the acquisition of PeopleSoft earlier this year. aimed at taking market share from No. SAP AG’s hasty acquisition of SAP TN was widely perceived as a response to the new competitive threat from Oracle. 12. Edwards World Solutions. SAP apparently has now warehoused an extensive library of Oracle’s proprietary. called Project Fusion. and support technicians. Oracle had previously announced that in January 2005 it would complete its acquisition of PeopleSoft.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 were just about to become. increasing Oracle’s potency as a competitor to SAP AG for enterprise applications software. new customers of SAP TN – SAP AG’s and SAP America’s software support subsidiary whose sole purpose is to compete with Oracle. As explained below. this theft appears to be an essential – and illegal – part of SAP’s competitive strategy against Oracle. Inc. SAP AG acquired SAP TN.” 13. Oracle officially became a player on SAP’s turf. through SAP America. in 2003. an independent software support company founded by former PeopleSoft software engineers. * 11. “Oracle Corp. is developing a ‘super set’ of applications.
It certainly did not match Oracle’s investment in development resources.” Although SAP America President and CEO. SAP advertised this strategy as its “Safe Passage” program. with indications that this number may go significantly higher if traced further back in time. 15. SAP stole much of the Software and Support Materials directly from Oracle. · A systematic pattern of “sweeping” Oracle’s Customer Connection support website from SAP TN servers just days before. Indeed. SAP TN did not appear to have the development capability to meet the support commitments advertised in the “Safe Passage” brochures at any price. Publicly.” But win at what cost? SAP appears to have taken a short cut to equip itself to support Oracle’s software programs at half Oracle’s price. industry observers deemed the “Safe Passage” program “measurably more aggressive. much less the 50% discount promoted by SAP. 14. SAP appeared to focus more on growing the SAP TN sales force rather than investing in or expanding SAP TN’s tiny development team. or even come close to it. by way of example. committed to throw “a lot of additional resources” behind SAP TN (which consisted of only 37 employees in total). Bill McDermott.000 illicit downloads from Customer Connection between September 2006 and January 2007. the . explicitly designed to transition customers away from Oracle products and onto the SAP software platform. SAP America’s CEO.” In connection with the SAP TN acquisition. the 6 COMPLAINT SAP’s unlawful copying and theft includes. a program aimed at siphoning off valuable software maintenance revenue from Oracle and persuading Oracle customers to switch software products [to 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 Oracle” by exploiting legacy PeopleSoft customers’ perceived unease about Oracle’s commitment to support legacy PeopleSoft software. 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. Nevertheless. As reported in industry publications. following: · More than 10.” and a sign that “SAP has taken the gloves off. Bill McDermott. or the day of. crowed “There’s nothing that I love more than to win.
clearly-marked internal proprietary Oracle support documents not available even to licensed. Oracle also has concerns that SAP may have enhanced or improved its own software applications offerings using information gleaned from Oracle’s Software and Support Materials. These illegal business practices threaten to cause irreparable harm to Oracle. Through its illegitimate and illegal business practices. to try to “keep the pressure on Oracle. · Accessing and downloading Software and Support Materials across multiple product lines in multiple lines of business available on the Customer Connection support website. 7 COMPLAINT . or in some cases on behalf of former Oracle customers with no access rights to Oracle’s Software and Support Materials whatsoever. its many employees.” SAP has been engaged in a systematic program of unfair. and theft of. Oracle has no adequate remedy at law for the harm threatened and caused by these acts. in the purported name of customers that had never licensed those products and had no legal access to them. the indiscriminate. authorized customers or through normal access to Oracle’s Customer Connection system. 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. In short. expiration of a new SAP TN customer’s support contract with Oracle. unlawful. · The improper access to.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. and deceptive business practices that continues to this day. SAP has taken Oracle’s Software and Support Materials and apparently used them to insinuate itself into Oracle’s customer base. and to attempt to convert these customers to SAP software applications. · On multiple occasions.
Oracle Corporation and Oracle USA are the licensees of the copyrights at issue in this action. Inc. County of San Mateo. County of San Mateo.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. with its principal place of business in Redwood City. SAP TN is a Texas corporation with its principal place of business in Bryan. Oracle Corporation is a Delaware corporation with its principal place of business in Redwood City. 19. Pennsylvania. THE PARTIES 17. Oracle USA is a Colorado corporation duly authorized to do business in the State of California. The corporate relationship of the three named defendants is set forth in the chart below. OIC is a California corporation duly authorized to do business in the State of California. Oracle Corporation develops and licenses database and applications software programs and provides related services around the world. Germany. SAP America is a wholly-owned subsidiary of SAP AG. Directly and through its subsidiaries. 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. 18. (“PeopleSoft”) and JDE. 22. State of California. 23. Oracle USA is the successor to PeopleSoft USA. State of California. 21. State of California.. SAP TN is a wholly-owned subsidiary of SAP America. County of San Mateo. 20. OIC is the owner of the copyrights at issue in this action. Walldorf. 8 COMPLAINT . Texas. with its only place of business in Redwood City. Oracle Corporation and Oracle USA are authorized to license to end users the copyrighted computer software programs and other works at issue in this action.
At all material times. SAP AG also holds an annual meeting of its Board of Directors in Palo Alto. parent. partnership. including Does 1 through 50. 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. whether individual. joint venturer. Oracle will amend this Complaint to allege their true names and capacities when ascertained. Defendants all are doing business in and/or have directed their activities at California. had full knowledge of and gave substantial 9 COMPLAINT . through its 100% ownership of both SAP America and SAP TN. or co-conspirator of the others. unincorporated association. or otherwise. was the agent. license. servant. 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.S. SAP America and SAP TN advertise. California. representative. partner. subsidiary. Similarly. affiliate. promote. and specifically this judicial district. at all material times. 26. Subsidiary) SAP TN (Wholly-owned U. By way of example only.S. SAP America had both the right and authority to control the actions of SAP TN. 27. SAP AG negotiates and enters into software license and support agreements directly within the United States and. sell. Subsidiary) Oracle is currently unaware of the true names and capacities of Does 1 through 50. inclusive. each of the Defendants. employee. SAP AG had both the right and the authority to control the actions of both corporations. corporation. service. specifically in this judicial district. At all material times.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. alter ego. and therefore sues these defendants by such fictitious names. and support customers in California and in this judicial district. 25. SAP AG (German Parent Corporation) SAP America (Wholly-owned U.
C. IV. Assignment is proper in this division under Civil L. when the relevant copyright registrations issue. representation. Venue in this district is appropriate. and the Court will have subjectmatter jurisdiction over those claims pursuant to 28 U. VI. III.D. 3-2 (c) and (d). Oracle’s first cause of action arises under the Computer Fraud and Abuse Act. and each is legally responsible for the acts and omissions of the others. This Court has supplemental subject matter jurisdiction over the pendent state law claims under 28 U. FACTUAL ALLEGATIONS A. employment. because a substantial part of the events giving rise to the dispute occurred in this district. and the first to receive J. In addition. § 1331.C.S. VENUE 30. Oracle’s Software and Support Materials 32.S.C. Oracle will seek to amend this Complaint to add claims for copyright infringement under the Copyright Act. § 1338. JURISDICTION 28.C.S. joint venture. § 1391. Power & Associates’ global certification for outstanding service and support based 10 COMPLAINT .S. et seq. service. and this Court has subject-matter jurisdiction over this action pursuant to 18 U.R. 17 U.. 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. or conspiracy. INTRADISTRICT ASSIGNMENT 31. affiliation.C.C. pursuant to 28 U. partnership.S. § 1030(g) and 28 U.S.. V. and the Court has personal jurisdiction over each of the parties as alleged throughout this 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 assistance to the alleged activities. 18 U. each was acting within the scope of such agency. §§ 1030 et seq.C. Oracle is the world’s largest enterprise software company. 29. and in doing the things alleged. §§ 101. § 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. a substantial part of the property that is the subject of the action is situated in this district.
41. In addition. 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. 42. and (3) no modifications of any Documents are made. product or upgrade announcements. WITHOUT LIMITING THE FOREGOING.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. software action requests. provided that (1) the below copyright notice appears in all copies and that both the copyright notice and this permission notice appear. The Legal Download Agreement further restricts use of documents downloaded from the website: Permission to use Documents (such as white papers. users accessing specific materials. press releases. datasheets and FAQs) from this server (“Server”) is granted. 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”).” To download a SAR. Use for any other purpose is expressly prohibited. These terms notify the user that the software available to download from Oracle is Oracle’s copyrighted material. such as a Software Application Request (“SAR”) through the SAR Search Web Application. 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. agree to additional legal restrictions. 13 COMPLAINT . COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. (2) use of such Documents from this Server is for informational and non-commercial or personal use only and will not be copied or posted on any network computer or broadcast in any media. The Software is 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. 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.
events unfolded at a rapid pace: eleven days after its announcement. SAP AG CEO Henning Kagermann claimed that even with PeopleSoft. On January 7.000 people joining by Webcast and phone. 2004 at the trial on the Department of Justice’s unsuccessful effort to block Oracle’s acquisition of PeopleSoft. 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. he even claimed to wish Oracle “good luck” in competing with SAP AG. Oracle launched the newly-united company and unveiled. the combination revitalized Oracle overnight as a competitor in the business software applications business. As SAP AG reeled. Rather than improve its own products and offerings. broader product line of enterprise applications software programs to compete against SAP AG. or intellectual property rights to. size. As SAP America’s Vice President of Operations. 2005. and geographic and product scope.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. 46. but now Oracle offered a deeper. 14 COMPLAINT .000 business applications software customers throughout the world. these same products. despite not owning any of the software code for. SAP AG instead considered how to undermine Oracle. how the nearly 50. Oracle would “not [be] a competitor which could really hurt us.000-strong combined workforce of Oracle and PeopleSoft would provide unparalleled innovation and support to 23. 44. 45. SAP AG suddenly found itself in a far different competitive environment than the one in which it had grown comfortable.” After the merger. Richard Knowles. But SAP AG had no answer for the business proposition the new Oracle offered. testified on June 23. One way was to hit at Oracle’s customer base – and potentially increase its own – by acquiring and bankrolling a company that claimed the ability to compete with Oracle support and maintenance services on Oracle’s own software products. Oracle Threatens To Unseat SAP 43. at its headquarters with more than 48. Not only do many SAP AG customers use Oracle’s superior database software programs. 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.
” 49. SAP TN 47. As one industry journalist explained. 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. by providing low-cost maintenance and support services to PeopleSoft and JDE customers running assorted versions of these software programs. because to the extent SAP AG successfully undermined Oracle by having its customers move from Oracle’s software to SAP AG’s software. SAP TN would eventually lose its customer base. SAP AG’s “front man for SAP AG’s mergers and acquisitions strategy. and to use SAP TN to do it. SAP AG has refused to disclose the terms of its SAP TN purchase. 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. SAP AG proposed to buy SAP TN outright and make it a wholly-owned – and wholly-beholden – subsidiary. In December 2004. Texas and founded by former PeopleSoft employees. SAP AG bought “another arrow in its quiver to hunt after Oracle’s customers. just weeks before Oracle would close the PeopleSoft acquisition. but – with the Oracle/PeopleSoft 15 COMPLAINT .” Aligning with SAP AG made little sense for SAP TN. SAP TN was a small software services company. So SAP AG had to make the price right. it instead focuses on simply keeping the software up and running for an annual fee. It claimed to compete with PeopleSoft. Oracle. JDE.” D. headquartered in Bryan. As described in a glossy spread in a leading industry publication. Acquiring SAP TN was not a mere investment by SAP AG. however. but a calculated competitive move.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.” Mackey made Nelson an offer “he couldn’t refuse. 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. As one industry observer put it. To retain full control over every detail of its scheme to lure away customers from Oracle. in December 2004. and later. often outdated. SAP Responds To Oracle Competition With Its “Safe Passage” Scheme 48. SAP TN president Andrew Nelson got “the magic phone call” from Jim Mackey.
On January 19. Henning Kagermann.” 51. In April 2005. identified SAP TN as instrumental to the parent company’s “Safe Passage” program.” The Senior Vice President and Chief Operating Officer of SAP Asia Pacific. publicly indicating that SAP TN was authorized and intended to implement SAP AG’s goals. at the SAP AG annual meeting. SAP AG would try to use SAP TN as a means of “speeding-up” the migration of PeopleSoft and JDE users to SAP platforms. to lure the support business over. Andrew Nelson. After the acquisition.” A month later. The CEOs stated the proposition more bluntly. 50. 2005. 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. As SAP AG Managing Director Alan Sedghi admitted. SAP would offer cut-rate pricing combined with the promise of essentially unlimited future support to former PeopleSoft and JDE support customers.” 16 COMPLAINT . admitted that the SAP TN acquisition was “an integral part” of SAP’s Safe Passage program.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. in barely a month. Colin Sampson. SAP would aggressively campaign to migrate those customers to an SAP enterprise software platform. SAP America’s CEO. stated. SAP AG’s top executives unveiled SAP AG’s acquisition of SAP TN as the centerpiece of its new “Safe Passage” scheme. First. SAP TN’s new parent companies directed it to begin to implement a two-phase plan to increase SAP’s enterprise application market share. which in turn was part of SAP’s “ongoing strategy to compete with Oracle. Bill McDermott. We want them to be successful. 52. “We're owned by SAP. publicly vowed to bankroll this effort to undermine Oracle by putting “a lot of additional resources into TomorrowNow.” And SAP TN certainly knew its role was to achieve SAP AG’s ends: as SAP TN’s CEO. in connection with converting Oracle customers to SAP support (via SAP TN). ease integration with SAP NetWeaver(TM) and begin the process of innovating their businesses today. SAP AG’s CEO. SAP TN agreed to the deal and cast its lot with SAP AG. SAP America CEO Bill McDermott claimed “The SAP Safe Passage offering gives companies an affordable way to protect their current investments.
17 COMPLAINT .000 direct mail solicitations to Oracle customers. PeopleSoft and JDE customer uncertainty about the prospects for long-term. If customers declined to convert 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 53. Instead. To give teeth to these commingled sales efforts. SAP sales representatives unleashed a torrent of marketing materials designed to exacerbate and leverage perceived. 55. it took a hands-on approach. SAP implemented Phase One immediately. SAP AG offered maintenance support through SAP TN. the SAP AG sales personnel would pressure the customers to drop Oracle products outright in favor of SAP AG’s suite. 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. consider another option: SAP. An April 2005 SAP AG press release apparently aimed to increase perceived doubt among Oracle customers by announcing a “second wave” of “Safe Passage. To implement Phase Two of its plan (luring Oracle customers to the SAP enterprise software platform). These lower cost alternatives advertised by SAP AG were to come directly through SAP TN. and Siebel customers – If Oracle’s options have you worried.” To exploit the fear it intended to create. quality support from Oracle.” SAP TN’s website confirms its acceptance and undertaking of the SAP-controlled Safe Passage program: “TomorrowNow can also provide our support services as part of the SAP Safe Passage Program. technology and maintenance services.” 54. Beginning in January 2005. albeit unfounded. officially “bundled” with SAP AG enterprise software as a centerpiece of the Safe Passage program. SAP AG’s “second wave” included “an intensive customer recruitment campaign. SAP provides solutions. SAP AG did not simply sit back and leave the recruiting of potential Safe Passage customers to SAP TN’s sales force.” and elsewhere says that “Safe Passage maintenance and support are delivered worldwide through TomorrowNow.” (emphasis supplied) SAP America’s website promises that “SAP and TomorrowNow can cut your maintenance costs by as much as 50% through 2015. JD Edwards. It deployed its salespeople to contact potential customers and push them to switch to SAP TN’s services.
’s own products [the Siebel products] for a far cheaper price. that it will offer technical support for more of rival software maker Oracle Corp. round the clock Siebel code support within a few weeks of Oracle’s acquisition announcement remained a mystery. including apparently instantaneous round the clock support from SAP TN – whose engineers at that time presumably had spent virtually no time to develop Siebel support software products. “SAP AG plans to announce .” SAP’s “cheaper price” (referred to elsewhere as “cut rate” support) continued at “50 cents on the dollar for maintenance fees. At the same time. . . SAP grew more desperate. curiously. SAP announced it would extend its Safe Passage program to Siebel 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. By July 2006. By March 2006.” 57.1 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. and more aggressive. SAP America President and CEO. investment protection and a clear road map to the next generation of business software.” including because SAP AG “extended the program in order to offer it as well to Siebel 18 COMPLAINT . 2005 announcement that it would acquire Siebel Systems.com after Oracle’s announcement of its impending Siebel acquisition. Henning Kagermann. However. Bill McDermott. and which it claimed “offers companies SAP solutions. as Oracle continued to take market share and expand its product offerings. SAP executives touted the Safe Passage program’s limited success in its first year. In October 2005. companies and corporate cultures. including through its September 12. SAP AG boasted in a press release that more than 200 customers had signed up for Safe Passage. Léo Apotheker. promised SAP AG would use SAP TN and the Safe Passage program to “fight for” more customers.” but its services were expanded to support more Oracle product lines and a wider range of customers. boasted that Safe Passage “continues to do really well. SAP AG CEO Henning Kagermann conceded that SAP had lost as much as 2% market share to Oracle. SAP AG’s CEO. the program it implemented partly through SAP TN. SAP AG continued to tout the success of Safe Passage. SAP AG’s President of Customer Solutions and Operations. As reported on Forbes. 58. maintenance services.” How SAP could offer instantaneous. In a July 2006 earnings call. technology.
without infringing on Oracle’s intellectual property. “customized ongoing tax and regulatory updates. “30-minute response time. It was not clear how SAP TN could offer. maintains a development force of more than 15. 60. Oracle. as it did on its website and its other materials. and purported to add full support for an entirely different product line – Siebel – with a wave of its hand. Oracle has now solved this puzzle. bug fixes. optimally functioning Oracle software.” and. SAP unlawfully accessed and copied Oracle’s Software and Support Materials. 62.1 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 SAP Solution: Stolen Passage 1. To stave off the mounting competitive threat from Oracle. even after having expanded its ranks to 150 employees. 24x7x365” on software programs for which it had no intellectual property rights. The economics.” E. patches. A Deal Too Good To Be True 59.” “fixes for serious issues.” “full upgrade script support. Although SAP put a brave face on its ability to compete with the increasingly potent Oracle applications offerings. SAP continued to offer this comprehensive support to hundreds of customers at the “cut rate” of 50 cents on the dollar. most remarkably. could actually develop and offer the hundreds of regulatory updates. Oracle Finds A Suspicious Pattern To analyze and improve on its industry leading support services. some industry analysts wondered whether a small company like SAP TN. patches. by comparison. 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 . To compound the puzzle. 61. F. and the logic.000 software and support engineers to create and help implement the code fixes. and in conjunction with opening new SAP TN offices around the world. and updates that comprise the advanced support services required by Oracle’s licensed customers. Apotheker claimed that SAP now had “a global network of [SAP TN] capabilities” – enough to “gain significant traction.” By extending the Safe Passage program to Siebel customers. simply did not add up. and other labor-intensive support items that a customer would need to maintain useful.
In late 2006. If the customer selects the “No. Indeed. And. Given the extreme speed at which the activity occurred. and Oracle discovered that each response – each answer by users pretending to be the customer – occurred in a matter of seconds or less. 20 COMPLAINT . hundreds. 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. Oracle regularly compiles this data to assess whether its system helped customers resolve their support issues. these click patterns showed that the users had employed an automated process to move with lightning speed through the entire library of Software and Support Materials on the Customer Connection website. unexplained spikes in the number of customers on the online support website who had clicked the “No. these clicks could not reflect real responses from any human customers actually reading the solutions they had accessed. Some of these apparent customer users even downloaded materials after their contractual support rights had expired. authorized use of Customer Connection.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. In the course of this investigation. 64. continue search” option. apparently. with the aim of continually improving the support system for customers. Oracle noticed huge. Frequently. would access Oracle’s system and download large quantities of Software and Support Materials. in the month before a customer’s Oracle support expired. 63. 65. continue search” option. Oracle discovered a pattern. employing the customer’s log-in credentials. over and over again. Oracle soon discovered that many of these “customers” had taken massive quantities of Software and Support Materials beyond their license rights. Instead. 2. the support system responds by offering the customer further options. These clicks numbered in the thousands for several customers. to take a copy of them all. a user purporting to be that customer. including dozens. or thousands of products beyond the scope of the specific customer’s licensed products and permitted access. Oracle also discovered that the downloaded Software and Support Materials included internal documents not available even to licensed customers and not available through normal.
JDE. (5) Nigel Pullan. SAP TN’s management.P. or lease the Software or Documentation. for third party use. · That the Materials on the support website are confidential information subject to existing confidentiality agreements. · 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. disclose. including: (1) Andrew Nelson. rent. Of SAP TN’s tenmember management team. or any portion thereof.D.P. and a significant number of its employees. President and CEO. such as Wade Walden. · That the customer username and password are for the customer’s sole use in accessing this support server.P. or third party training.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70. Global J. · Not to directly or indirectly. who is reflected as the person performing many of the downloads at issue. relicense.P. V. six list prior employment experience with PeopleSoft. (2) Bob Geib. Quality. appear to have applied their familiarity with the Customer Connection website to directly participate in and perfect the illegal 22 COMPLAINT . Edwards Support. and (6) Shelley Nelson. former PeopleSoft employees who work for SAP. use.P. Global PeopleSoft Support. distribute. V. North American Sales. In addition. · 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. sublicense. V. (3) Laura Sweetman. or Oracle. formerly worked at PeopleSoft and JDE. V. (4) Mel Gadd. · Not to access the customer support system if it is not the customer’s authorized and designated Oracle technical support contact. International Sales. SAP TN has intimate familiarity with these important restrictions and conditions relating to Oracle’s Software and Support Materials. V.
display.V. 74. Bear. Oracle has uncovered unlicensed downloads linked to SAP TN on behalf of numerous customers.. 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.. 4.. Interbrew UK. B.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 support only for products that a company has licensed.. 17 U. and impose strict confidentiality requirements. Inc. Herbert Waldman. Ronis. Specific Examples Of SAP TN’s Unlawful Customer Downloads SAP TN’s improper access to.A. Oracle’s Customer Connection website is too pervasive. National Manufacturing. SAP TN reviewed and agreed to the terms and conditions on Oracle’s support website before proceeding. Merck & Co. By way of example 24 COMPLAINT . and therefore committed its theft knowingly and intentionally. Laird Plastics. SAP TN’s acts violated Oracle’s exclusive rights to use. Accordingly.S. and covers too many individual violations. Distribution & Auto Service. reproduce. 75. S. SPX Corporation. Mortice Kern Systems. and taking from. and Yazaki North America. VSM Group AB. NGC Management Limited. to comprehensively detail here.C. Fuelserv Limited. create derivative works. and in conscious disregard of Oracle’s protected intellectual property and the integrity of its computer systems.. Stora Enso. AbitibiConsolidated. Metro Machine Corp. Berri Limited. including without limitation. OCE Technologies. §§ 101 et seq. Helzberg Diamonds. publish.C. Stearns & Co. Honeywell International..S. With literally thousands of software programs available for licensing. offer for sale. and distribute these works. Texas Association of School Boards. Grupo Costamex. Smithfield Foods.S.. § 506. Border Foods. The Software and Support Materials that SAP TN downloaded from Oracle’s systems also included numerous works that are protected under the Federal Copyright Laws. § 501 and also willful and intentional copyright infringement under 17 U. Abbott Laboratories. 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. Caterpillar Elphinstone. Such acts constitute copyright infringement under 17 U.C. Inc.
000 of the Software and Support Materials taken in this period were solutions that Honeywell was not licensed to take at all. In the approximately three and a half year period before Honeywell switched to SAP TN.000 distinct Software and Support Materials for JDE software. 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. Inc. Honeywell. In the three months prior to that date. Over 2. licenses and receives support for many Oracle software products. the unauthorized downloads did not stop there. Merck & Company. after switching to SAP TN. 76. More than 5. Merck’s support rights for its JDE software products expired on January 1. “Honeywell” downloaded over 450 distinct unlicensed solutions on January 16.000 of these downloads related to JDE software products for which Merck 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 of the nature and extent of SAP’s theft. Merck. 77. Then. Oracle subsequently connected many of the illegal downloads to an SAP TN IP address and to SAP TN’s employee. (“Merck”). during which “Honeywell” was downloading almost 1800 solutions per day. Honeywell International (“Honeywell”) is listed on SAP TN’s website as a client. Most of these excessive downloads came during the course of four days. 25 COMPLAINT . Honeywell used and licensed PeopleSoft software applications. Many of these “Merck” downloads came directly from an IP address in Bryan. Users logging into Oracle’s support system with Merck’s credentials continued to download Software and Support Materials into March 2007. 2007. In one specific library containing solutions for Enterprise One software. users purporting to be “Merck” logged into the Oracle support system and downloaded over 9. 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. This unlawful downloading even stretched across product families. it averaged just over 20 downloads of Software and Support Materials per month.000 Software and Support Materials in less than two weeks in January 2007. one of the largest pharmaceutical companies in the world. Wade Walden – a former PeopleSoft employee now employed by SAP. 2007 and nearly 400 more the next day. but Oracle discovered users downloading JDE products with Honeywell’s credentials. But.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Texas that belongs to SAP TN. OCE-Technologies B. and neither OCE nor SAP TN have any license. authorization or other right to access and download the 5. such as the name “user” and phone numbers such as “123 456 7897.” In many cases. Canadian Payroll.” Neither Merck nor SAP TN had any license. false user names) and downloaded over 12. and some were traced to a computer with SAP TN’s initials in the title. users employing OCE’s credentials downloaded a large number of Oracle products relating to US Payroll. or other right to access and download these Software and Support Materials. OCE. In the months leading up to the expiration of OCE’s support rights for its Oracle products. There is little chance that SAP TN intended OCE as the beneficiary of these massive sweeps.000-plus unlicensed Software and Support Materials from Oracle. Texas. These downloads included over 3. including specifically to a computer with SAP TN’s initials in the title.000 distinct items for which OCE had no license. SAP TN users logged into Oracle’s support system using OCE’s credentials (and. Like the other companies. 26 COMPLAINT .” “9999999999. in some cases.000 distinct Software and Support Materials. “TNL-02. Homebuilder Management.” and even “xxx xxx xxxx. and could serve no legitimate or lawful business purpose. authorization. “TN-DL03.V. (“OCE”) is located in the Netherlands and appears as a customer on SAP TN’s website. and Real Estate Management – none of which make sense coming from a European customer in support of its European business.” Similar to the other customer examples. many of these “OCE” users entered phony identification information. SAP TN users employed fake identification information to download the Software and Support Materials. using names such as “xx” “ss” and “NULL.” and phone numbers such as “4444444444” and “999 999 9999. since OCE does not run many of the software programs to which these downloads relate. 78. these illegal downloads are associated with the same IP address belonging to SAP TN in Bryan.” 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. From December of 2006 to January of 2007.
users logging into Oracle’s support system with Metro Machine’s credentials continued to download Software and Support Materials into March 2007. In addition. between October and December 2006.” Many of these SPX downloads. SAP TN. at SAP AG’s and SAP America’s direction. originated from the same IP address belonging to SAP TN. G. and some were traced to a computer with SAP TN’s initials in the title. as reflected on SAP TN’s website. Then. 2006 and became an SAP TN customer. but used fake identification information like the name “NULL” and phone numbers like “7777777777” and “999 999 9999. For the nine month period prior to October 2006. “tn-wts01. SPX Corporation (“SPX”) dropped all Oracle support on December 10.000 distinct Software and Support Materials. 2006 were Software and Support Materials related to unlicensed Payroll software. SPX averaged approximately eleven downloads per month from Oracle’s support system. these users logged in using SPX credentials. SPX. (“Metro Machine”) dropped all Oracle support effective on January 1.700 distinct Software and Support Materials for which SPX had no license. Metro Machine Corp. SAP AG and SAP America directed this 27 COMPLAINT . In some cases. Oracle has traced these illegal and unauthorized downloads to the same SAP TN IP address employed for the Honeywell downloads described above. listed on its website. Nearly 400 of those downloads related to software programs that Metro Machine had not licensed from Oracle. like the others. Over 300 distinct downloads just on November 30.” 80. users purporting to represent SPX accessed and downloaded over 8. SAP Adds The Ill-Gotten Gains To Its Coffers 81. 2007 and switched to SAP TN. These SPX downloads included over 1. illegally downloaded thousands of fixes and updates from Oracle’s restricted customer support website. Not coincidentally. Metro Machine.000 distinct Oracle Software and Support Materials (far more than SPX could legitimately access or use).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. users purporting to represent Metro Machine logged onto Oracle’s support servers and downloaded nearly 6. In the month before Metro Machine dropped its support rights with Oracle. SAP TN now claims to have delivered thousands of fixes and more than 800 tax and regulatory updates to Oracle’s former customers.
18 U. trespass on Oracle’s support website. SAP has thereby caused significant damage to Oracle through its SAP TN subsidiary.C. ratified it. without authorization or by exceeding authorized access to such a computer. by intentionally accessing a computer used for interstate commerce or communication. and by means of such conduct furthered the intended fraud and obtained one or more things of value. interference with Oracle’s business relationships. without authorization or by exceeding authorized access to such a computer.C. 18 U.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 download scheme. in addition to the irreparable harm caused by Defendants’ unfair competition. §§ 1030(a)(2)(C) & (a)(4) & a(5)) (By Oracle Against All Defendants) 82. § 1030(a)(5)(A)(i) by knowingly causing the transmission of a program. 85. Defendants have violated the Computer Fraud and Abuse Act.S. and with intent to defraud Oracle. Using Oracle’s own protected property to unfairly compete against and undercut Oracle. SAP has illegally converted Oracle’s former. accessing a protected computer. Defendants have violated the Computer Fraud and Abuse Act. § 1030(a)(4) by knowingly. code. current. and never disavowed it. § 1030(a)(2)(C). information.C. 28 COMPLAINT . 84. including but not limited to Oracle’s Software and Support Materials.S. or command and as a result intentionally causing damage without authorization to a protected computer owned by Oracle. 18 U.C. and prospective customers and the associated license and support revenue to artificially inflate its market share. 83. and by obtaining information from such a protected computer.S. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. and related computer fraud. First Claim for Relief Violation of Federal Computer Fraud and Abuse Act (18 U. Defendants have violated the Computer Fraud and Abuse Act.
and without permission providing. a means of accessing Oracle’s computers. computer system. 89. and/or computer network.C. harm to Oracle’s data. 87. fraudulently. 93. including. Defendants’ unlawful access to and theft from Oracle’s computers also have caused Oracle irreparable injury. Defendants have violated the Computer Fraud and Abuse Act. 91. 18 U.C. Penal Code § 502 (By Oracle Against All Defendants) 90. and making use of programs. Defendants will continue to commit such acts. Defendants have violated California Penal Code § 502(c)(6) by knowingly. 88. Second Claim for Relief Computer Data Access and Fraud Act . and files from Oracle’s computers. in an amount well over $5000 aggregated over a one-year period.S. entitling Oracle to remedies including injunctive relief as provided by 18 U. in any event. programs.S.Cal. but. Oracle’s remedy at law is not adequate to compensate it for these inflicted and threatened injuries. Oracle has suffered damage and loss by reason of these violations. and computer systems and other losses and damage in an amount to be proved at trial. fraudulently. recklessly or without due regard for their actions. without limitation. The computer system or systems that Defendants accessed as described above constitute a “protected computer” within the meaning of 18 U. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. § 1030(g).S. computer system. causing damage to Oracle.C. and without permission accessing and using Oracle’s computer services. §§ 1030(a)(5)(A)(ii) & (iii) by intentionally accessing a protected computer without authorization.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. 92. or assisting in providing. and/or computer network. taking. Unless restrained and enjoined. 29 COMPLAINT . Defendants have violated California Penal Code § 502(c)(3) by knowingly. data. accessing. § 1030(e)(2). Defendants have violated California Penal Code § 502(c)(2) by knowingly and fraudulently. copying. and without permission.
and/or computer network. 95. fraudulently. Defendants have violated California Penal Code § 502(c)(7) by knowingly. These relationships contained the probability of future economic benefit in the form of profitable support service contracts and software licenses.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. entitling Oracle to injunctive relief. 101. Third Claim for Relief Intentional Interference With Prospective Economic Advantage (By Oracle Against All Defendants) 99. 96. 100. computer system. Oracle is also entitled to recover its reasonable attorneys’ fees pursuant to California Penal Code § 502(e). or causing to be accessed. and due to the continuing threat of such injury. 98. As a direct and proximate result of Defendants’ unlawful conduct within the meaning of California Penal Code § 502. 97. 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. 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. Had Defendants refrained from engaging in the unlawful and wrongful conduct described in this complaint. there is a 30 COMPLAINT . Oracle owns the data that comprises the Software and Support Materials obtained by Defendants as alleged above. and without permission accessing. Defendants have caused damage to Oracle in an amount to be proven at trial. Oracle’s computers. Oracle has also suffered irreparable injury from these acts. has no adequate remedy at law. Oracle has an expectancy in continuing and advantageous economic relationships with current and prospective purchasers and licensees of Oracle’s support services and software.
C. Cal. Cal. violation of RICO. renewed. § 1029. as alleged above. fraud and related activity in connection with an access device. and conspiracy. Defendants gained unauthorized access to Oracle’s password-protected Customer Connection support website through false or improper credentials. constitutes violations of numerous state and federal statutes and codes. and ultimately to migrate such customers away from Oracle’s software programs and onto their own. wire fraud. §§ 270111. 106. 18 U. violation of the Federal Computer Fraud and Abuse Act. copied Oracle’s intellectual and contractual property. but not limited to. § 1343.C. the above-described relationships have been actually disrupted. including.C. § 1962.. Defendants’ conduct also constitutes trespass to chattels. or expanded support contracts and software licenses with Oracle rather than Defendants. 18 U. 18 U.S. As a direct and proximate result of Defendants’ actions. causing certain current and prospective support clients to contract with Defendants instead of Oracle for their software support and maintenance and. 105.S. This conduct.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 substantial probability that Oracle support customers would have initiated. Oracle has suffered economic harm. Penal Code § 502. § 1030 et seq. 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. including. receipt of stolen property.S.C. unauthorized access to computers. and used that property to obtain and retain Oracle’s current and prospective clients.S. 18 U. 103. for their enterprise software. As a result of Defendants’ acts. On information and belief.S. conversion. and violation of the Stored Communications Act. in some cases. loss of profits from sales or licenses to 31 COMPLAINT . Penal Code § 496. 102. These acts were undertaken by Defendants to obtain for themselves the software support contract revenue at Oracle’s expense.C. Defendants’ conduct was wrongful by a measure beyond the fact of the interference itself. and without the cost of competing fairly by independently developing the same support materials. 104. unjust enrichment. 18 U. but not limited to.
Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. Defendants’ wrongful conduct was a substantial factor in causing this harm. renewed.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. and in conscious disregard of Oracle’s rights. Unless Defendants are restrained by appropriate injunctive relief. 112. 111. Instead. or expanded support contracts and software licenses with Oracle rather than Defendants. Defendants’ interference with Oracle’s prospective economic advantage with its current and future customers. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. malicious. 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 . Defendants failed to act with reasonable care. there is a substantial probability that Oracle support customers would have initiated. 110. 107. their actions are likely to recur and will cause Oracle irreparable injury for which there is no adequate remedy at law. 108. 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. as 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. These relationships contain the probability of future economic benefit in the form of profitable support service contracts and software licenses. Defendants knew or should have known about the economic relationship. oppressive. described above. was willful.
violation of the Federal Computer Fraud and Abuse Act. 33 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 support contract revenue at Oracle’s expense and without the cost of competing fairly by independently developing the same support materials. copied Oracle’s intellectual and contractual property.S. causing certain current and prospective support clients to contract with Defendants instead of Oracle for their software support and maintenance and. as alleged above.S. Oracle has suffered economic harm. 114. violation of RICO. Penal Code § 496. constitutes violations of numerous state and federal statutes and codes.C. 113. and software products. and conspiracy. 18 U. but not limited to. As a direct and proximate result of Defendants’ actions. their actions are likely to recur and will cause Oracle irreparable injury for which there is no adequate remedy at law.S. Cal. unjust enrichment. including. Cal. and violation of the Stored Communications Act. Penal Code § 502. loss of profits from sales to current and potential customers of Oracle support. 18 U. § 1343. Defendants’ wrongful conduct was a substantial factor in causing this harm.C. including. § 1962. §§ 270111. 18 U. unauthorized access to computers. conversion. 115. maintenance. Unless Defendants are restrained by appropriate injunctive relief. Defendants gained unauthorized access to Oracle’s password-protected Customer Connection support website through false or improper credentials.S. Defendants’ conduct also constitutes trespass to chattels. § 1029. wire fraud. This conduct. § 1030 et seq.C. 116. fraud and related activity in connection with an access device. and used that property to obtain and retain Oracle’s current and prospective clients. but not limited to. 18 U.S.C.C. Defendants’ conduct was wrongful by a measure beyond the fact of the interference itself. in some cases. 18 U. 117. receipt of stolen property. As a result of Defendants’ acts.. for their enterprise software. the above-described relationships have been actually disrupted.
and other illegal acts and practices as alleged above. Defendants have improperly and unlawfully taken commercial advantage of Oracle’s investment in its confidential.C.C. Penal Code § 496. 18 U. conversion. wire fraud. 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. fraud and related activity in connection with an access device. receipt of stolen property. Code §§ 17200. and copyrighted Software and Support Materials. Code § 17200 (By Oracle Against All Defendants) Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. conversion.C. negligent interference with prospective economic advantage. unlawful. § 1029. 34 COMPLAINT . 123.. and unfair competition as defined by California Bus.C. The acts and conduct of Defendants constitute fraudulent.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. §§ 2701-11.Cal. § 1343.S. 120. 119. 121. violation of RICO.C.S. 122. Defendants’ conduct also constitutes trespass to chattels.S. but not limited to. Cal. Defendants’ conduct constitutes violations of numerous state and federal statutes and codes. Fifth Claim for Relief Unfair Competition . violation of the Computer Fraud and Abuse Act. §§ 1030 et seq. These unlawful business acts or practices were committed pursuant to business activity related to providing business applications software and related support and maintenance for that software. 18 U. and conspiracy. § 1962. intentional interference with prospective economic advantage. proprietary. trespass. 18 U. unauthorized access to computers.S. & Prof. 18 U.S. interference with business relationships. Penal Code § 502. Bus. unjust enrichment. & Prof. including. et seq. 18 U. In light of Defendants’ conduct. and violation of the Stored Communications Act. all in an effort to gain unfair competitive advantage over Oracle. Defendants have engaged in unlawful business acts or practices by committing acts including computer fraud.
retention. Defendants should be compelled to disgorge and/or restore any and all revenues. and copyrighted Software and Support Materials. unfair. or control. 126.. 128. and should be enjoined from further unlawful. compensation. Defendants should further be ordered to return all materials taken from Oracle. but not limited to. Oracle has also suffered irreparable injury and. As a result of such unfair competition. in their possession. and all copies of such. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. Defendants intentionally and willfully entered Oracle’s password-protected Customer Connection support website without permission and took possession of Oracle’s property. 125. whereby Oracle has no adequate remedy at law. 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. which is valuable to Oracle and vital to its continued business operations. proprietary. Oracle has an exclusive right to possession and distribution of such property. Oracle at no time consented. Defendants’ unfair business practices have unjustly minimized Oracle’s competitive advantage and have caused and are causing Oracle to suffer damages. removal. including. custody. expressly or impliedly. 129. returning the value of the stolen property itself and any revenue earned from it. profits. or distribution of such property. Instead of paying Oracle for the use of its property. including. 130. downloading. but not limited to. all of which Oracle stored on its computer system. and deceptive business practices. and benefits they may have obtained in violation of California Business & Professions Code § 17200 et seq. This property is the sole and exclusive property of Oracle. Oracle’s confidential. to Defendants’ copying. 35 COMPLAINT . earnings. will continue to suffer irreparable injury. unless Defendants are enjoined from such unfair competition.
Oracle is entitled to an award of the value of the property taken. Defendants’ wrongful conduct was a substantial factor in causing this harm. Oracle is entitled to restitution of the Defendants’ ill-gotten gains. At all times mentioned in this Complaint. Defendants’ improper assumption and exercise of dominion and control over Oracle’s property and their likely sale and distribution of the same has and will continue to interfere with and diminish Oracle’s rights in that property. Oracle is entitled to damages and repossession of the converted property. Oracle had legal title to and actual possession of Customer Connection. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. in an amount to be determined at trial. Defendants have been in knowing and unauthorized possession and control of such property since at least between September 2006 and the present. 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. Allowing Defendants to retain the benefits received as a result of their wrongful acts would unjustly benefit Defendants at Oracle’s expense. profits from potential purchasers of Oracle support services and licensees of Oracle software products. and other damages in an amount to be proven at trial. as described above. and will continue to lose. Since that time.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 addition. As a direct and proximate result of Defendants’ actions. Oracle has lost. and the Software and Support Materials on that support system. 137. at the latest. In addition. or in the alternative. 132. Seventh Claim for Relief Trespass To Chattels (By Oracle Against All Defendants) 136. or in the alternative. 133. 135. 36 COMPLAINT . with interest. 134. its access-restricted internet-based support system. Oracle will seek its election of remedies at trial.
and conversion of the Software and Support Materials. which took substantial time and money for Oracle to develop. but not limited to. for which Oracle’s remedy at law is not adequate to compensate it for the injuries inflicted and threatened. the integrity and functionality of Oracle’s computer system and data. including Defendants’ interference with Oracle’s business relationships and other unfair business practices. computer fraud concerning. Defendants unjustly received benefits at the expense of Oracle through their wrongful conduct. 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 is entitled to recover any and all damages it sustained as a result of such trespass. Defendants’ trespass interfered with. Defendants intentionally interfered with Oracle’s use or possession of both Customer Connection and Oracle’s related internal databases and systems. in an amount to be determined at trial. 143. Defendants caused Oracle’s property to greatly diminish in value and deprived Oracle of the intended use of its computer systems. 139. and damage to the confidential and copyrighted nature of the information on Oracle’s website. As a result. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. 141. as well as Defendants’ trespass on. Defendants continue to unjustly retain these benefits at the 37 COMPLAINT . including. and damaged. Defendants will continue to commit such acts and other competitors will be encouraged to sweep Oracle’s website. Defendants’ trespass therefore threatens to cause irreparable harm to Oracle. Defendants’ trespass and interference proximately caused 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 28 138. Eighth Claim for Relief Unjust Enrichment/Restitution (By Oracle Against All Defendants) 142. and the Software and Support Materials housed for licensed access through Customer Connection. 140. damage to Oracle’s rights to dominion and control over its property. damage to the functionality of Oracle’s computer system and data.
The wrongful conduct committed pursuant to the conspiracy was a substantial factor in causing this harm. including Defendants’ interference with Oracle’s business relationships and other unfair business practices. intentionally. encouraging. and harm. 147. computer fraud concerning. Defendants willfully. and in furtherance of. Oracle has suffered injury. Oracle is accordingly entitled to full restitution of all amounts in which Defendants have been unjustly enriched at Oracle’s expense. loss. and conversion of the Software and Support Materials. Ninth Claim for Relief Civil Conspiracy (By Oracle Against All Defendants) 145. as well as Defendants’ trespass on. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. 144. or adopting the acts of the others. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 expense of Oracle. 148. that agreement and/or furthered the conspiracy by cooperating. ratifying. oppressive. and commission of. It would be unjust for Defendants to retain any value they obtained as a result of their wrongful conduct. malicious. Defendants’ intentional agreement to commit. loss of profits from sales to current and potential customers of Oracle support services and licenses for Oracle’s software programs. 149. 146. and knowingly agreed and conspired with each other to engage in the alleged wrongful conduct. and in conscious disregard of Oracle’s rights. including. but not limited to. damage. these wrongful acts was willful. Defendants did the acts alleged pursuant to. As a direct and proximate result of the acts in furtherance of the conspiracy. 38 COMPLAINT .
and conversion of the Software and Support Materials. As fully described above. 151.1 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. by providing substantial assistance and/or encouraging the others to act. and in conscious disregard of Oracle’s rights. 39 COMPLAINT . and harm. Oracle has suffered injury. was wrongful in and of itself. but not limited to. oppressive. malicious. including interference with Oracle’s business relationships and other unfair business practices. 152. Defendants had full knowledge or should have reasonably known of the true nature of the wrongful conduct of each other Defendant. 153. 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. including. loss. 150. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. computer fraud concerning. The wrongful conduct aided and abetted by the Defendants was a substantial factor in causing this harm. damage. separately considered. Defendants’ aiding and abetting of these wrongful acts was willful. loss of profits from sales to current and potential customers of Oracle support services and licenses to Oracle software programs. as well as Defendants’ trespass on. As a direct and proximate result of the aiding and abetting of these acts. 154. Defendants also aided and abetted the described wrongful conduct of the other Defendants by giving substantial assistance and/or encouragement that. 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 aided and abetted such wrongful conduct.
willfully. For a preliminary and permanent injunction restraining Defendants. and copyrighted Software and Support Materials. and attorneys. Oracle respectfully prays for the following: A. for the purpose of sabotaging Oracle’s ability to do business and compete in the market. servants. Oracle’s confidential. and valuable 40 COMPLAINT . and that some or all of such money is rightfully due to Oracle. (c) Willfully converting Oracle’s confidential. or using any property obtained from Oracle’s website. at Oracle’s expense. internal documents. agents. 158. distributing. without Oracle’s authorization. therefore. (d) Fraudulently accessing and intentionally trespassing on Oracle’s password-protected Customer Connection website. to a full accounting. in furtherance of their unlawful and deceptive scheme as described above. their officers. without authorization or consent. employees. including without limitation the Customer Connection website. Oracle is entitled. and unlawfully taking commercial advantage of Oracle’s investment in its Software and Support Materials.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 156. Prayer For Relief WHEREFORE. 157. proprietary. and. including without limitation. Defendants have obtained business through the use of unlawful conduct including. 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. including data. and copyrighted Software and Support Materials. Defendants have received money as a result of their misconduct. but not limited to: (a) Intentionally and/or negligently interfering with Oracle’s prospective economic advantage with its existing and potential customers. (2) selling. and those in active concert or participation with any of them from: (1) accessing any Oracle restricted-access or customer website. proprietary. (b) Improperly. Since at least September 2006.
D. patches. and other computer code. but not limited to Oracle’s confidential. B. fixes. patches. setting forth in detail the manner and form in which Defendants have complied with the injunction. aiding and abetting and conspiracy. and other computer code. including data. internal documents. Oracle’s confidential. as set forth in this Complaint. That the Court order Defendants to file with the Court and serve on Oracle within thirty (30) days after the service on Defendants of such injunction a report in writing. proprietary. For an Order directing Defendants to return Oracle’s property. For an accounting. and copyrighted Software and Support Materials. F. I. (4) otherwise engaging in acts of unfair competition and interference with Oracle’s business relationships. including. including data. For an Order awarding Oracle its attorneys’ fees and costs. without limitation. internal documents. (3) removing. and copyrighted Software and Support Materials. C. that Defendants took from Oracle. and other computer code. and valuable updates. Court deems just and proper. J. 41 COMPLAINT For damages to be proven at trial. For restitution and disgorgement of all ill-gotten gains unjustly obtained and retained by Defendants through the acts complained of here. proprietary. fixes. on the basis of their willful and deliberate unauthorized computer access. intentional interference with Oracle’s prospective economic advantage. K. G. For an Order awarding Oracle such other and further relief as the . and. fixes. and valuable updates. That the Court order Defendants to pay Oracle punitive damages in a sum to be determined at trial. For prejudgment interest. H. under oath. patches. including. downloading or copying property from Oracle’s website without Oracle’s authorization.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.
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