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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
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.. These “customer users” supplied user information (such as user name. For example. and phone number) that did not match the customer at all. some users logged in with the user names of “xx” “ss” “User” and “NULL. This systematic theft of Oracle’s Software and Support Materials did not originate from any actual customer location.com” and fake phone numbers such as “7777777777” and “123 456 7897. Oracle has found many examples of similar activity. to gain access to Oracle’s system under false pretexts.000 unauthorized downloads of Software and Support Materials relating to hundreds of different software programs. 9. the access originated from an internet protocol (IP) address in Bryan. this user information did not match anything: it was fake. All of these customers whose IDs SAP appropriated had one critical fact in common: they were. an SAP America branch office location and home of its wholly-owned subsidiary SAP TN. Indeed. Oracle to date has identified more than 10. Rather. including the ones described above. Across its entire library of Software and Support Materials in 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 departed customers. Texas. SAP blended log-in information from multiple customers with fake information. like Metro Machine Corp. Employing these techniques. For example. In some 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 . Texas. 7. 8. combined with phony user log-in information. In many instances. SAP employees used the log-in IDs of multiple customers. SAP TN is a company that purports to provide technical support services on certain versions of Oracle’s PeopleSoft and JDE software programs.” Others used phony email addresses like “test@testyomama. Oracle’s server logs have recorded access through this same IP address by computers labeled with SAP identifiers using SAP IP addresses. and downloaded Software and Support Materials even after the customer had dropped its support rights with Oracle. email address. SAP users effectively swept much of the contents of Oracle’s system onto SAP’s servers.” In other cases. The Bryan.
Not by coincidence. and (c) support contracts to keep the software updated and upgraded. aimed at taking market share from No. in 2003. SAP apparently has now warehoused an extensive library of Oracle’s proprietary. (b) consulting relating to the implementation and operation of the 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.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. One industry analyst stated that. SAP’s own statements confirmed it. Oracle had previously announced that in January 2005 it would complete its acquisition of PeopleSoft. In January 2005. “Oracle Corp. consulting. Oracle said it has thousands of developers building the new application suite. increasing Oracle’s potency as a competitor to SAP AG for enterprise applications software. Edwards World Solutions.D. developers. “After the acquisition of PeopleSoft earlier this year. 10.” Another mused. revenue comes from three basic activities: (a) license of the underlying software. SAP AG’s hasty acquisition of SAP TN was widely perceived as a response to the new competitive threat from Oracle. is developing a ‘super set’ of applications. 12. SAP AG spokesman Bill Wohl vowed that SAP AG would use SAP TN to “keep the pressure on 1 “JDE” refers to J. Inc. copyrighted Software and Support Materials. and support technicians. 1 ranked SAP. 5 COMPLAINT . through SAP America. an independent software support company founded by former PeopleSoft software engineers. As explained below. Oracle officially became a player on SAP’s turf. this theft appears to be an essential – and illegal – part of SAP’s competitive strategy against Oracle. new customers of SAP TN – SAP AG’s and SAP America’s software support subsidiary whose sole purpose is to compete with Oracle. * * In the world of enterprise software applications.” 13. * 11. and support. called Project Fusion. SAP AG acquired SAP TN. Industry observers noted this fundamental shift in the competitive landscape. a software company acquired by PeopleSoft. As a result of this illegal activity.
following: · More than 10. It certainly did not match Oracle’s investment in development resources. Publicly. with indications that this number may go significantly higher if traced further back in time. by way of example. a program aimed at siphoning off valuable software maintenance revenue from Oracle and persuading Oracle customers to switch software products [to SAP]. SAP advertised this strategy as its “Safe Passage” program. industry observers deemed the “Safe Passage” program “measurably more aggressive.” Although SAP America President and CEO. much less the 50% discount promoted by SAP. explicitly designed to transition customers away from Oracle products and onto the SAP software platform. Indeed. 15.000 illicit downloads from Customer Connection between September 2006 and January 2007. SAP TN’s services “form[ed] the basis of [SAP AG’s] Safe Passage initiative. the . · A systematic pattern of “sweeping” Oracle’s Customer Connection support website from SAP TN servers just days before. Bill McDermott. SAP stole much of the Software and Support Materials directly from Oracle. the 6 COMPLAINT SAP’s unlawful copying and theft includes. or the day of. Nevertheless. As reported in industry publications. or even come close to it. 14. SAP TN did not appear to have the development capability to meet the support commitments advertised in the “Safe Passage” brochures at any price. SAP appeared to focus more on growing the SAP TN sales force rather than investing in or expanding SAP TN’s tiny development team. crowed “There’s nothing that I love more than to win.” But win at what cost? SAP appears to have taken a short cut to equip itself to support Oracle’s software programs at half Oracle’s price. SAP America’s CEO.” In connection with the SAP TN acquisition. committed to throw “a lot of additional resources” behind SAP TN (which consisted of only 37 employees in total).” and a sign that “SAP has taken the gloves off. Bill McDermott.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.
authorized customers or through normal access to Oracle’s Customer Connection system. Through its illegitimate and illegal business practices. the indiscriminate. SAP has taken Oracle’s Software and Support Materials and apparently used them to insinuate itself into Oracle’s customer base. and deceptive business practices that continues to this day. to try to “keep the pressure on Oracle. These illegal business practices threaten to cause irreparable harm to Oracle. and to attempt to convert these customers to SAP software applications.” SAP has been engaged in a systematic program of unfair. 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. in the purported name of customers that had never licensed those products and had no legal access to them. Oracle has no adequate remedy at law for the harm threatened and caused by these acts. 7 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 16. or in some cases on behalf of former Oracle customers with no access rights to Oracle’s Software and Support Materials whatsoever. expiration of a new SAP TN customer’s support contract with Oracle. and its customers. 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. · Accessing and downloading Software and Support Materials across multiple product lines in multiple lines of business available on the Customer Connection support website. unlawful. clearly-marked internal proprietary Oracle support documents not available even to licensed. In short. · On multiple occasions. · The improper access to. and theft of.
Oracle USA develops and licenses database and applications software programs and provides related services. Inc. Germany. 8 COMPLAINT . 19. 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. Pennsylvania.. 21. Walldorf. The corporate relationship of the three named defendants is set forth in the chart below. (“PeopleSoft”) and JDE. Directly and through its subsidiaries. State of California. Oracle Corporation is a Delaware corporation with its principal place of business in Redwood City. Oracle Corporation develops and licenses database and applications software programs and provides related services around the world. 23. State of California. State of California. County of San Mateo. Oracle USA is the successor to PeopleSoft USA. with its principal place of business in Redwood City. Texas. 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.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. SAP America is a wholly-owned subsidiary of SAP AG. 18. 20. County of San Mateo. with its only place of business in Redwood City. County of San Mateo. 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. SAP America is a Delaware corporation with its principal place of SAP AG is a German corporation with its principal place of business in business in Newtown Square. OIC is the owner of the copyrights at issue in this action. THE PARTIES 17. 22.
was the agent. Defendants all are doing business in and/or have directed their activities at California. partner. California. Subsidiary) SAP TN (Wholly-owned U. joint venturer. or otherwise. Subsidiary) Oracle is currently unaware of the true names and capacities of Does 1 through 50. through its 100% ownership of both SAP America and SAP TN. Similarly. at all material times. and finances the sales and promotional activities of both SAP America and SAP TN throughout the United States and in California. 25. subsidiary. SAP America and SAP TN advertise. whether individual. corporation. license. SAP America had both the right and authority to control the actions of SAP TN. By way of example only. each of the Defendants. Oracle will amend this Complaint to allege their true names and capacities when ascertained. sell. or co-conspirator of the others. 26. representative. SAP AG (German Parent Corporation) SAP America (Wholly-owned U. SAP AG negotiates and enters into software license and support agreements directly within the United States and. unincorporated association.S. and specifically this judicial district. and therefore sues these defendants by such fictitious names. parent. 27. and support customers in California and in this judicial district. partnership. through its 100% ownership of SAP TN. promote. servant. At all material times. At all material times. specifically in this judicial district.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. SAP AG also holds an annual meeting of its Board of Directors in Palo Alto. 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.S. employee. service. affiliate. had full knowledge of and gave substantial 9 COMPLAINT . SAP AG had both the right and the authority to control the actions of both corporations. inclusive. alter ego.
R.C.. and the first to receive J. representation. because a substantial part of the events giving rise to the dispute occurred in this district. §§ 101.S. and the Court will have subjectmatter jurisdiction over those claims pursuant to 28 U. IV. employment. and the Court has personal jurisdiction over each of the parties as alleged throughout this Complaint.C.C. 17 U. pursuant to 28 U. and in doing the things alleged. a substantial part of the property that is the subject of the action is situated in this district.S. V. In addition. service.C. and this Court has subject-matter jurisdiction over this action pursuant to 18 U. 29. § 1391. §§ 1030 et seq. Oracle is the world’s largest enterprise software company. affiliation.S. VI. Oracle’s first cause of action arises under the Computer Fraud and Abuse Act.S.S. when the relevant copyright registrations issue. joint venture.C.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 assistance to the alleged activities. partnership. Venue in this district is appropriate..S. 3-2 (c) and (d). § 1367 because these claims are so related to Oracle’s claims under federal law that they form part of the same case or controversy and derive from a common nucleus of operative facts. and each is legally responsible for the acts and omissions of the others. § 1338. FACTUAL ALLEGATIONS A. III. VENUE 30. § 1331. INTRADISTRICT ASSIGNMENT 31. Assignment is proper in this division under Civil L. each was acting within the scope of such agency.D. Oracle will seek to amend this Complaint to add claims for copyright infringement under the Copyright Act.S.C. 18 U. Power & Associates’ global certification for outstanding service and support based 10 COMPLAINT . 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. Oracle’s Software and Support Materials 32.C. § 1030(g) and 28 U. JURISDICTION 28. or conspiracy. et seq. This Court has supplemental subject matter jurisdiction over the pendent state law claims under 28 U.
13 COMPLAINT . These terms notify the user that the software available to download from Oracle is Oracle’s copyrighted material. All Software is confidential information of Oracle / PeopleSoft / JDEdwards and its use and distribution is governed by the terms of the software license agreement that is in effect between you and Oracle / PeopleSoft / JDEdwards (“License Agreement”). In addition.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JDEdwards and/or its affiliates or suppliers. (2) use of such Documents from this Server is for informational and non-commercial or personal use only and will not be copied or posted on any network computer or broadcast in any media. datasheets and FAQs) from this server (“Server”) is granted. press releases. 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. the user must click on a button indicating that it accepts these terms. provided that (1) the below copyright notice appears in all copies and that both the copyright notice and this permission notice appear. agree to additional legal restrictions. software action requests. Any reproduction or redistribution of the Software not in accordance with the License Agreement is expressly prohibited. 41. and (3) no modifications of any Documents are made. such as a Software Application Request (“SAR”) through the SAR Search Web Application. users accessing specific materials. Use for any other purpose is expressly prohibited. WITHOUT LIMITING THE FOREGOING. 42.” To download a SAR. 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. product or upgrade announcements. The Legal Download Agreement further restricts use of documents downloaded from the website: Permission to use Documents (such as white papers. COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. The terms further provide that the “software is part of the Licensed Products under the License Agreement” and “is made available for downloading solely for use by licensed end users according to the License Agreement.
44. Oracle completed its acquisition of PeopleSoft to emerge as the second-largest provider of business software applications in the world and the first to rival SAP AG in market share.000 business applications software customers throughout the world. Not only do many SAP AG customers use Oracle’s superior database software programs. 2005. at its headquarters with more than 48. Richard Knowles. Rather than improve its own products and offerings. On January 7. Oracle Threatens To Unseat SAP 43. broader product line of enterprise applications software programs to compete against SAP AG. 46. 2004 at the trial on the Department of Justice’s unsuccessful effort to block Oracle’s acquisition of PeopleSoft. or intellectual property rights to. he even claimed to wish Oracle “good luck” in competing with SAP AG. how the nearly 50. events unfolded at a rapid pace: eleven days after its announcement. 45.1 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. Oracle launched the newly-united company and unveiled. the combination revitalized Oracle overnight as a competitor in the business software applications business. testified on June 23.000-strong combined workforce of Oracle and PeopleSoft would provide unparalleled innovation and support to 23. As SAP America’s Vice President of Operations.000 people joining by Webcast and phone. One way was to hit at Oracle’s customer base – and potentially increase its own – by acquiring and bankrolling a company that claimed the ability to compete with Oracle support and maintenance services on Oracle’s own software products. SAP AG suddenly found itself in a far different competitive environment than the one in which it had grown comfortable. But SAP AG had no answer for the business proposition the new Oracle offered. 14 COMPLAINT . 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. but now Oracle offered a deeper. size. despite not owning any of the software code for.” After the merger. Oracle would “not [be] a competitor which could really hurt us. these same products. As SAP AG reeled. and geographic and product scope. SAP AG CEO Henning Kagermann claimed that even with PeopleSoft. SAP AG instead considered how to undermine Oracle.
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. SAP TN president Andrew Nelson got “the magic phone call” from Jim Mackey.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. As 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.” Aligning with SAP AG made little sense for SAP TN. however. In December 2004. As one industry journalist explained. headquartered in Bryan. because to the extent SAP AG successfully undermined Oracle by having its customers move from Oracle’s software to SAP AG’s software. but – with the Oracle/PeopleSoft 15 COMPLAINT . often outdated. just weeks before Oracle would close the PeopleSoft acquisition.” Mackey made Nelson an offer “he couldn’t refuse. by providing low-cost maintenance and support services to PeopleSoft and JDE customers running assorted versions of these software programs. 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. Oracle.” 49. Acquiring SAP TN was not a mere investment by SAP AG. SAP AG proposed to buy SAP TN outright and make it a wholly-owned – and wholly-beholden – subsidiary. SAP AG bought “another arrow in its quiver to hunt after Oracle’s customers. SAP TN would eventually lose its customer base. SAP AG’s “front man for SAP AG’s mergers and acquisitions strategy. SAP TN was a small software services company. To retain full control over every detail of its scheme to lure away customers from Oracle. in December 2004. So SAP AG had to make the price right. SAP AG has refused to disclose the terms of its SAP TN purchase. and later. SAP TN 47. It claimed to compete with PeopleSoft. and to use SAP TN to do it. SAP TN claimed that it could cut customer maintenance and support bills in half and give customers a reprieve from software upgrade cycles by allowing customers to remain on older. SAP Responds To Oracle Competition With Its “Safe Passage” Scheme 48. but a calculated competitive move. Texas and founded by former PeopleSoft employees. As one industry observer put it. JDE.” D.
SAP TN agreed to the deal and cast its lot with SAP AG. admitted that the SAP TN acquisition was “an integral part” of SAP’s Safe Passage program. in barely a month.” 16 COMPLAINT . First. The CEOs stated the proposition more bluntly.” A month later. “We're owned by SAP. SAP AG’s CEO. 50. in connection with converting Oracle customers to SAP support (via SAP TN).” And SAP TN certainly knew its role was to achieve SAP AG’s ends: as SAP TN’s CEO. SAP America’s CEO.” 51. 2005. SAP AG’s top executives unveiled SAP AG’s acquisition of SAP TN as the centerpiece of its new “Safe Passage” scheme. Henning Kagermann. publicly indicating that SAP TN was authorized and intended to implement SAP AG’s goals. 52. We want them to be successful.” The Senior Vice President and Chief Operating Officer of SAP Asia Pacific. As SAP AG Managing Director Alan Sedghi admitted. publicly vowed to bankroll this effort to undermine Oracle by putting “a lot of additional resources into TomorrowNow. Bill McDermott. which in turn was part of SAP’s “ongoing strategy to compete with Oracle. SAP would aggressively campaign to migrate those customers to an SAP enterprise software platform.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. stated. In April 2005. at the SAP AG annual meeting. On January 19. SAP America CEO Bill McDermott claimed “The SAP Safe Passage offering gives companies an affordable way to protect their current investments. identified SAP TN as instrumental to the parent company’s “Safe Passage” program. After the acquisition. ease integration with SAP NetWeaver(TM) and begin the process of innovating their businesses today. Colin Sampson. 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. SAP would offer cut-rate pricing combined with the promise of essentially unlimited future support to former PeopleSoft and JDE support customers. to lure the support business over. Andrew Nelson. SAP TN’s new parent companies directed it to begin to implement a two-phase plan to increase SAP’s enterprise application market share. Second. SAP AG would try to use SAP TN as a means of “speeding-up” the migration of PeopleSoft and JDE users to SAP platforms.
JD Edwards. officially “bundled” with SAP AG enterprise software as a centerpiece of the Safe Passage program. technology and maintenance services. SAP provides solutions. SAP AG offered maintenance support through SAP TN.000 direct mail solicitations to Oracle customers. Instead. An April 2005 SAP AG press release apparently aimed to increase perceived doubt among Oracle customers by announcing a “second wave” of “Safe Passage. SAP sales representatives unleashed a torrent of marketing materials designed to exacerbate and leverage perceived.” (emphasis supplied) SAP America’s website promises that “SAP and TomorrowNow can cut your maintenance costs by as much as 50% through 2015. 55. consider another option: SAP. As reflected on SAP AG’s website: “SAP offers Safe Passage for PeopleSoft. To give teeth to these commingled sales efforts. To implement Phase Two of its plan (luring Oracle customers to the SAP enterprise software platform). quality support from Oracle. SAP AG’s “second wave” included “an intensive customer recruitment campaign. offering significantly lower cost maintenance alternatives to Oracle customers running PSFT/JDE solutions” through 70. and Siebel customers – If Oracle’s options have you worried. 17 COMPLAINT . albeit unfounded. It deployed its salespeople to contact potential customers and push them to switch to SAP TN’s services. the SAP AG sales personnel would pressure the customers to drop Oracle products outright in favor of SAP AG’s suite. SAP implemented Phase One immediately. These lower cost alternatives advertised by SAP AG were to come directly through SAP TN.” To exploit the fear it intended to create. Beginning in January 2005. SAP AG did not simply sit back and leave the recruiting of potential Safe Passage customers to SAP TN’s sales force. it took a hands-on approach.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.” and elsewhere says that “Safe Passage maintenance and support are delivered worldwide through TomorrowNow.” 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. If customers declined to convert to SAP TN.” 54. PeopleSoft and JDE customer uncertainty about the prospects for long-term.
companies and corporate cultures. that it will offer technical support for more of rival software maker Oracle Corp. However. Léo Apotheker. SAP AG CEO Henning Kagermann conceded that SAP had lost as much as 2% market share to Oracle. curiously. 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. By March 2006. maintenance services. SAP executives touted the Safe Passage program’s limited success in its first year. As reported on Forbes. Bill McDermott.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. technology. as Oracle continued to take market share and expand its product offerings. SAP AG continued to tout the success of Safe Passage. 58. At the same time. promised SAP AG would use SAP TN and the Safe Passage program to “fight for” more customers. SAP AG’s CEO. and which it claimed “offers companies SAP solutions. . 2005 announcement that it would acquire Siebel Systems. Henning Kagermann. including through its September 12. and more aggressive. the program it implemented partly through SAP TN. SAP AG boasted in a press release that more than 200 customers had signed up for Safe Passage. SAP America President and CEO.” but its services were expanded to support more Oracle product lines and a wider range of customers. SAP announced it would extend its Safe Passage program to Siebel customers. In a July 2006 earnings call. .” 57. SAP AG’s President of Customer Solutions and Operations.com after Oracle’s announcement of its impending Siebel acquisition.’s own products [the Siebel products] for a far cheaper price. investment protection and a clear road map to the next generation of business software.” How SAP could offer instantaneous.” SAP’s “cheaper price” (referred to elsewhere as “cut rate” support) continued at “50 cents on the dollar for maintenance fees. boasted that Safe Passage “continues to do really well. 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 . In October 2005. By July 2006. “SAP AG plans to announce . SAP grew more desperate. 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.
optimally functioning Oracle software. A Deal Too Good To Be True 59. even after having expanded its ranks to 150 employees. The economics. F. simply did not add up. patches.” “full upgrade script support.” “fixes for serious issues. Apotheker claimed that SAP now had “a global network of [SAP TN] capabilities” – enough to “gain significant traction. Although SAP put a brave face on its ability to compete with the increasingly potent Oracle applications offerings. 60. 24x7x365” on software programs for which it had no intellectual property rights.” and. and purported to add full support for an entirely different product line – Siebel – with a wave of its hand. To stave off the mounting competitive threat from Oracle. SAP continued to offer this comprehensive support to hundreds of customers at the “cut rate” of 50 cents on the dollar. maintains a development force of more than 15. some industry analysts wondered whether a small company like SAP TN. as it did on its website and its other materials. could actually develop and offer the hundreds of regulatory updates. “customized ongoing tax and regulatory updates. patches. Oracle. It was not clear how SAP TN could offer. SAP unlawfully accessed and copied Oracle’s Software and Support Materials.000 software and support engineers to create and help implement the code fixes. 61. To compound the puzzle. and in conjunction with opening new SAP TN offices around the world. and the logic.” E. “30-minute response time. and other labor-intensive support items that a customer would need to maintain useful. most remarkably. 62. bug fixes. without infringing on Oracle’s intellectual property. Oracle has now solved this puzzle. and updates that comprise the advanced support services required by Oracle’s licensed customers.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 customers. The SAP Solution: Stolen Passage 1.” By extending the Safe Passage program to Siebel customers. by comparison. Oracle Finds A Suspicious Pattern To analyze and improve on its industry leading support services. 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 .
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. including dozens. Indeed. to take a copy of them all. authorized use of Customer Connection. 64. 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. Frequently. employing the customer’s log-in credentials. these clicks could not reflect real responses from any human customers actually reading the solutions they had accessed. 65. And. hundreds. Instead. Given the extreme speed at which the activity occurred. with the aim of continually improving the support system for customers. 20 COMPLAINT . continue search” option. unexplained spikes in the number of customers on the online support website who had clicked the “No.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 customer’s problem. Oracle discovered a pattern. Oracle regularly compiles this data to assess whether its system helped customers resolve their support issues. 2. Oracle noticed huge. Oracle also discovered that the downloaded Software and Support Materials included internal documents not available even to licensed customers and not available through normal. If the customer selects the “No. or thousands of products beyond the scope of the specific customer’s licensed products and permitted access. continue search” option. In the course of this investigation. Some of these apparent customer users even downloaded materials after their contractual support rights had expired. In late 2006. These clicks numbered in the thousands for several customers. would access Oracle’s system and download large quantities of Software and Support Materials. over and over again. a user purporting to be that customer. Oracle soon discovered that many of these “customers” had taken massive quantities of Software and Support Materials beyond their license rights. in the month before a customer’s Oracle support expired. apparently. and Oracle discovered that each response – each answer by users pretending to be the customer – occurred in a matter of seconds or less. 63. the support system responds by offering the customer further options.
former PeopleSoft employees who work for SAP. · That the customer username and password are for the customer’s sole use in accessing this support server. · 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. Global PeopleSoft Support. distribute. rent. such as Wade Walden. International Sales. or any portion thereof. V. who is reflected as the person performing many of the downloads at issue. (3) Laura Sweetman. · Not to access the customer support system if it is not the customer’s authorized and designated Oracle technical support contact.D.P. Of SAP TN’s tenmember management team. disclose. V. Quality. V. Global J. · Not to directly or indirectly. six list prior employment experience with PeopleSoft.P.P. · 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. including: (1) Andrew Nelson. President and CEO. or third party training.P. North American Sales. or lease the Software or Documentation. JDE. use. (5) Nigel Pullan. or Oracle. and (6) Shelley Nelson. (4) Mel Gadd. V. for third party use. formerly worked at PeopleSoft and JDE. SAP TN’s management.P. In addition. SAP TN has intimate familiarity with these important restrictions and conditions relating to Oracle’s 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 70. sublicense. (2) Bob Geib. and a significant number of its employees. appear to have applied their familiarity with the Customer Connection website to directly participate in and perfect the illegal 22 COMPLAINT . Edwards Support. V. · That the Materials on the support website are confidential information subject to existing confidentiality agreements. relicense.
Caterpillar Elphinstone. Helzberg Diamonds. Such acts constitute copyright infringement under 17 U. 75. Mortice Kern Systems. and distribute these works. and Yazaki North America. 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. AbitibiConsolidated.C. NGC Management Limited. By way of example 24 COMPLAINT . and in conscious disregard of Oracle’s protected intellectual property and the integrity of its computer systems. Accordingly. VSM Group AB. Abbott Laboratories.. Inc.S.A. and therefore committed its theft knowingly and intentionally. Honeywell International. § 501 and also willful and intentional copyright infringement under 17 U. publish. including without limitation. 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. Grupo Costamex. National Manufacturing.. Inc. 17 U.V. and taking from. to comprehensively detail here. and covers too many individual violations.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 support only for products that a company has licensed.S.C. Berri Limited. With literally thousands of software programs available for licensing. 74. §§ 101 et seq. Metro Machine Corp. and impose strict confidentiality requirements. Border Foods. Smithfield Foods. § 506. SAP TN’s acts violated Oracle’s exclusive rights to use. OCE Technologies. Oracle’s Customer Connection website is too pervasive. SPX Corporation. Laird Plastics. Ronis.C. Stearns & Co. 4. Interbrew UK. display. Stora Enso. Specific Examples Of SAP TN’s Unlawful Customer Downloads SAP TN’s improper access to. create derivative works. Fuelserv Limited. SAP TN reviewed and agreed to the terms and conditions on Oracle’s support website before proceeding. Merck & Co. B..S.. Bear. Distribution & Auto Service.. 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. Texas Association of School Boards. offer for sale. Herbert Waldman. S. Oracle has uncovered unlicensed downloads linked to SAP TN on behalf of numerous customers.. reproduce..
Wade Walden – a former PeopleSoft employee now employed by SAP. In the approximately three and a half year period before Honeywell switched to SAP TN. Many of these “Merck” downloads came directly from an IP address in Bryan. Merck. 2007 and nearly 400 more the next day. after switching to SAP TN.000 of these downloads related to JDE software products for which Merck had no license. But. Honeywell. 25 COMPLAINT . This unlawful downloading even stretched across product families. (“Merck”). Honeywell International (“Honeywell”) is listed on SAP TN’s website as a client. 76. Users logging into Oracle’s support system with Merck’s credentials continued to download Software and Support Materials into March 2007. Most of these excessive downloads came during the course of four days. 2007. 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. Inc. Merck’s support rights for its JDE software products expired on January 1. Honeywell used and licensed PeopleSoft software applications. users purporting to be “Merck” logged into the Oracle support system and downloaded over 9. it averaged just over 20 downloads of Software and Support Materials per month. a user employing Honeywell’s log-in ID downloaded over 7. Then. In one specific library containing solutions for Enterprise One software. licenses and receives support for many Oracle software products. More than 5. Over 2. one of the largest pharmaceutical companies in the world. “Honeywell” downloaded over 450 distinct unlicensed solutions on January 16. Merck & Company. Oracle subsequently connected many of the illegal downloads to an SAP TN IP address and to SAP TN’s employee. Oracle sets forth below illustrative instances of SAP TN’s illegal conduct regarding a few of its customers. 77. but Oracle discovered users downloading JDE products with Honeywell’s credentials. In the three months prior to that date.000 Software and Support Materials in less than two weeks in January 2007.1 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.000 of the Software and Support Materials taken in this period were solutions that Honeywell was not licensed to take at all. the unauthorized downloads did not stop there.000 distinct Software and Support Materials for JDE software. during which “Honeywell” was downloading almost 1800 solutions per day.
” This systematic sweep of products across numerous licensed and unlicensed Oracle product lines and libraries dramatically exceeded the access for which OCE (and SAP TN acting on its behalf) had any right or authority. (“OCE”) is located in the Netherlands and appears as a customer on SAP TN’s website. false user names) and downloaded over 12.1 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.” In many cases.000 distinct items for which OCE had no license.000 distinct Software and Support Materials. authorization or other right to access and download the 5. and neither OCE nor SAP TN have any license.” Similar to the other customer examples. In the months leading up to the expiration of OCE’s support rights for its Oracle products. these illegal downloads are associated with the same IP address belonging to SAP TN in Bryan. and could serve no legitimate or lawful business purpose. There is little chance that SAP TN intended OCE as the beneficiary of these massive sweeps. including specifically to a computer with SAP TN’s initials in the title. in some cases. “TNL-02. 78. 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.” “9999999999. “TN-DL03. or other right to access and download these Software and Support Materials. SAP TN users employed fake identification information to download the Software and Support Materials. authorization.” and even “xxx xxx xxxx. since OCE does not run many of the software programs to which these downloads relate.000-plus unlicensed Software and Support Materials from Oracle. Texas.” and phone numbers such as “4444444444” and “999 999 9999. using names such as “xx” “ss” and “NULL. Homebuilder Management. OCE.V. From December of 2006 to January of 2007. SAP TN users logged into Oracle’s support system using OCE’s credentials (and. Canadian Payroll. such as the name “user” and phone numbers such as “123 456 7897. Like the other companies. These downloads included over 3. and some were traced to a computer with SAP TN’s initials in the title. 26 COMPLAINT . many of these “OCE” users entered phony identification information. OCE-Technologies B.” Neither Merck nor SAP TN had any license.
“tn-wts01.000 distinct Oracle Software and Support Materials (far more than SPX could legitimately access or use). These SPX downloads included over 1. (“Metro Machine”) dropped all Oracle support effective on January 1.700 distinct Software and Support Materials for which SPX had no license. 2006 and became an SAP TN customer. these users logged in using SPX credentials.” 80.1 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. For the nine month period prior to October 2006. Metro Machine Corp. users logging into Oracle’s support system with Metro Machine’s credentials continued to download Software and Support Materials into March 2007. In addition. 2007 and switched to SAP TN. Oracle has traced these illegal and unauthorized downloads to the same SAP TN IP address employed for the Honeywell downloads described above. at SAP AG’s and SAP America’s direction. In some cases. G.000 distinct Software and Support Materials. SAP TN. SAP AG and SAP America directed this 27 COMPLAINT . 2006 were Software and Support Materials related to unlicensed Payroll software. SPX Corporation (“SPX”) dropped all Oracle support on December 10. SPX. Nearly 400 of those downloads related to software programs that Metro Machine had not licensed from Oracle. SAP TN now claims to have delivered thousands of fixes and more than 800 tax and regulatory updates to Oracle’s former customers. Over 300 distinct downloads just on November 30. and some were traced to a computer with SAP TN’s initials in the title. SPX averaged approximately eleven downloads per month from Oracle’s support system. SAP Adds The Ill-Gotten Gains To Its Coffers 81. like the others. users purporting to represent Metro Machine logged onto Oracle’s support servers and downloaded nearly 6. between October and December 2006. Metro Machine. Not coincidentally.” Many of these SPX downloads. listed on its website. but used fake identification information like the name “NULL” and phone numbers like “7777777777” and “999 999 9999. originated from the same IP address belonging to SAP TN. Then. illegally downloaded thousands of fixes and updates from Oracle’s restricted customer support website. as reflected on SAP TN’s website. In the month before Metro Machine dropped its support rights with Oracle. users purporting to represent SPX accessed and downloaded over 8.
accessing a protected computer. and never disavowed it.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 download scheme.S. trespass on Oracle’s support website. information. Defendants have violated the Computer Fraud and Abuse Act. and by means of such conduct furthered the intended fraud and obtained one or more things of value. 84.C. interference with Oracle’s business relationships. including but not limited to Oracle’s Software and Support Materials. 28 COMPLAINT . First Claim for Relief Violation of Federal Computer Fraud and Abuse Act (18 U.C. SAP has thereby caused significant damage to Oracle through its SAP TN subsidiary.S. Defendants have violated the Computer Fraud and Abuse Act. by intentionally accessing a computer used for interstate commerce or communication.C. ratified it. 83. 18 U. or command and as a result intentionally causing damage without authorization to a protected computer owned by Oracle. § 1030(a)(2)(C). Using Oracle’s own protected property to unfairly compete against and undercut Oracle. § 1030(a)(5)(A)(i) by knowingly causing the transmission of a program. 85. SAP has illegally converted Oracle’s former. 18 U. 18 U. in addition to the irreparable harm caused by Defendants’ unfair competition. and prospective customers and the associated license and support revenue to artificially inflate its market share. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. and with intent to defraud Oracle. current. Defendants have violated the Computer Fraud and Abuse Act.S. without authorization or by exceeding authorized access to such a computer. §§ 1030(a)(2)(C) & (a)(4) & a(5)) (By Oracle Against All Defendants) 82.C. and related computer fraud. code. and by obtaining information from such a protected computer.S. without authorization or by exceeding authorized access to such a computer. § 1030(a)(4) by knowingly.
and making use of programs. including. computer system. 18 U. 93.S. 89. fraudulently.Cal. 87. Oracle’s remedy at law is not adequate to compensate it for these inflicted and threatened injuries. Defendants have violated California Penal Code § 502(c)(2) by knowingly and fraudulently. and/or computer network. taking.C.C. and/or computer network. and without permission providing. Unless restrained and enjoined. 29 COMPLAINT . and computer systems and other losses and damage in an amount to be proved at trial. in an amount well over $5000 aggregated over a one-year period. recklessly or without due regard for their actions. and without permission.S. 88. but. 92.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 86. a means of accessing Oracle’s computers. causing damage to Oracle. programs. Defendants have violated California Penal Code § 502(c)(3) by knowingly. and without permission accessing and using Oracle’s computer services. Defendants have violated the Computer Fraud and Abuse Act. fraudulently. 91. § 1030(e)(2). harm to Oracle’s data. § 1030(g). Defendants’ unlawful access to and theft from Oracle’s computers also have caused Oracle irreparable injury. Penal Code § 502 (By Oracle Against All Defendants) 90. accessing. The computer system or systems that Defendants accessed as described above constitute a “protected computer” within the meaning of 18 U. Second Claim for Relief Computer Data Access and Fraud Act . or assisting in providing. §§ 1030(a)(5)(A)(ii) & (iii) by intentionally accessing a protected computer without authorization. Oracle has suffered damage and loss by reason of these violations. computer system. Defendants have violated California Penal Code § 502(c)(6) by knowingly. and files from Oracle’s computers. copying. data. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here.S. without limitation.C. Defendants will continue to commit such acts. entitling Oracle to remedies including injunctive relief as provided by 18 U. in any event.
and due to the continuing threat of such injury. 97. Third Claim for Relief Intentional Interference With Prospective Economic Advantage (By Oracle Against All Defendants) 99. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. Oracle has an expectancy in continuing and advantageous economic relationships with current and prospective purchasers and licensees of Oracle’s support services and software. 96. has no adequate remedy at law. Oracle has also suffered irreparable injury from these acts. and/or computer network. 95. Oracle owns the data that comprises the Software and Support Materials obtained by Defendants as alleged above. Oracle is therefore entitled to punitive damages. 98.1 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. 101. Had Defendants refrained from engaging in the unlawful and wrongful conduct described in this complaint. fraudulently. Defendants have caused damage to Oracle in an amount to be proven at trial. computer system. 100. Oracle is also entitled to recover its reasonable attorneys’ fees pursuant to California Penal Code § 502(e). and without permission accessing. there is a 30 COMPLAINT . 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. entitling Oracle to injunctive relief. or causing to be accessed. Oracle’s computers. 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. Defendants have violated California Penal Code § 502(c)(7) by knowingly.
§ 1343.S. or expanded support contracts and software licenses with Oracle rather than Defendants. 18 U.. This conduct. unauthorized access to computers. and conspiracy. 106. 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. causing certain current and prospective support clients to contract with Defendants instead of Oracle for their software support and maintenance and. copied Oracle’s intellectual and contractual property.S. but not limited to.C. the above-described relationships have been actually disrupted. and without the cost of competing fairly by independently developing the same support materials. Penal Code § 502. for their enterprise software. § 1030 et seq. These acts were undertaken by Defendants to obtain for themselves the software support contract revenue at Oracle’s expense. 18 U.C. including.C.S.C. On information and belief. renewed. Cal. 18 U. As a direct and proximate result of Defendants’ actions. fraud and related activity in connection with an access device. As a result of Defendants’ acts. Penal Code § 496. loss of profits from sales or licenses to 31 COMPLAINT . 105. Defendants gained unauthorized access to Oracle’s password-protected Customer Connection support website through false or improper credentials. § 1962. and violation of the Stored Communications Act.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. Defendants’ conduct was wrongful by a measure beyond the fact of the interference itself. conversion. unjust enrichment. but not limited to.S. 18 U. and ultimately to migrate such customers away from Oracle’s software programs and onto their own. receipt of stolen property. wire fraud.C. Oracle has suffered economic harm. §§ 270111. 18 U. in some cases. 104. § 1029. Defendants’ conduct also constitutes trespass to chattels. including. violation of the Federal Computer Fraud and Abuse Act. violation of RICO. constitutes violations of numerous state and federal statutes and codes. 102. as alleged above. and used that property to obtain and retain Oracle’s current and prospective clients. Cal.S. 103.
renewed. Defendants’ interference with Oracle’s prospective economic advantage with its current and future customers. 107. These relationships contain the probability of future economic benefit in the form of profitable support service contracts and software licenses. Defendants’ wrongful conduct was a substantial factor in causing this harm. 111. and in conscious disregard of Oracle’s rights. Defendants knew or should have known about the economic relationship.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. or expanded support contracts and software licenses with Oracle rather than Defendants. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. 108. malicious. there is a substantial probability that Oracle support customers would have initiated. oppressive. described above. they used Oracle’s Software and Support Materials to obtain and retain for themselves software 32 COMPLAINT . was willful. Unless Defendants are restrained by appropriate injunctive relief. their actions are likely to recur and will cause Oracle irreparable injury for which there is no adequate remedy at law. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. and knew or should have known that these relationships would be interfered with and disrupted if Defendants failed to act with reasonable care in their use of Oracle’s Software and Support Materials. Had Defendants refrained from engaging in the unlawful and wrongful conduct described in this complaint. Instead. Defendants failed to act with reasonable care. Fourth Claim for Relief Negligent Interference With Prospective Economic Advantage (By Oracle Against All Defendants) 109. Oracle has an expectancy in continuing and advantageous economic relationships with current and prospective purchasers and licensees of Oracle’s support services and software. 110. as described above. 112.
receipt of stolen property.S. Unless Defendants are restrained by appropriate injunctive relief.S. Cal. violation of the Federal Computer Fraud and Abuse Act. including. Oracle has suffered economic harm. 18 U. This conduct. and conspiracy. Cal. 116. 115.S.C. As a direct and proximate result of Defendants’ actions. §§ 270111. unauthorized access to computers.C. 18 U. 18 U. 114.C.C. As a result of Defendants’ acts. the above-described relationships have been actually disrupted.S. but not limited to. Defendants’ conduct also constitutes trespass to chattels. copied Oracle’s intellectual and contractual property. 18 U. § 1029. in some cases. and used that property to obtain and retain Oracle’s current and prospective clients.C. and violation of the Stored Communications Act. including. Defendants gained unauthorized access to Oracle’s password-protected Customer Connection support website through false or improper credentials. Penal Code § 502.. but not limited to. as alleged above. 113. and software products. violation of RICO. loss of profits from sales to current and potential customers of Oracle support. 117. Defendants’ wrongful conduct was a substantial factor in causing this harm. constitutes violations of numerous state and federal statutes and codes. for their enterprise software.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 support contract revenue at Oracle’s expense and without the cost of competing fairly by independently developing the same support materials. § 1962. Penal Code § 496. unjust enrichment. wire fraud. fraud and related activity in connection with an access device. § 1343. maintenance. Defendants’ conduct was wrongful by a measure beyond the fact of the interference itself. 18 U. conversion.S. § 1030 et seq. causing certain current and prospective support clients to contract with Defendants instead of Oracle for their software support and maintenance and. their actions are likely to recur and will cause Oracle irreparable injury for which there is no adequate remedy at law. 33 COMPLAINT .
S. § 1029. et seq. 18 U. violation of RICO. Penal Code § 496..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. Code §§ 17200. 122. all in an effort to gain unfair competitive advantage over Oracle. 18 U. and conspiracy. unauthorized access to computers. fraud and related activity in connection with an access device. & Prof. Bus. 18 U. negligent interference with prospective economic advantage. and unfair competition as defined by California Bus.S.C. receipt of stolen property. The acts and conduct of Defendants constitute fraudulent. 18 U. conversion. 18 U. conversion. unlawful.S. Cal. Cal.Cal. and copyrighted Software and Support Materials. § 1343. violation of the Computer Fraud and Abuse Act. wire fraud. In light of Defendants’ conduct. Code § 17200 (By Oracle Against All Defendants) Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. Defendants’ conduct constitutes violations of numerous state and federal statutes and codes.C. proprietary. 34 COMPLAINT . 120. §§ 1030 et seq.S. Fifth Claim for Relief Unfair Competition . § 1962. 119. 123. Defendants’ conduct also constitutes trespass to chattels.S.C. intentional interference with prospective economic advantage. 121.C. including. Penal Code § 502. & Prof. and other illegal acts and practices as alleged above. unjust enrichment.C. 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. but not limited to. 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. interference with business relationships. and violation of the Stored Communications Act. trespass. §§ 2701-11. 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.
This property is the sole and exclusive property of Oracle. but not limited to. or control. including. expressly or impliedly. downloading. including. earnings. returning the value of the stolen property itself and any revenue earned from it. 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. whereby Oracle has no adequate remedy at law. Instead of paying Oracle for the use of its property.. Oracle at no time consented. will continue to suffer irreparable injury. and copyrighted Software and Support Materials. 128. and should be enjoined from further unlawful. compensation. all of which Oracle stored on its computer system. unfair. As a result of such unfair competition. 129. profits. Oracle has an exclusive right to possession and distribution of such property. Oracle has also suffered irreparable injury and. and deceptive business practices. and all copies of such. 125. retention. 35 COMPLAINT . 130. Defendants should be compelled to disgorge and/or restore any and all revenues. which is valuable to Oracle and vital to its continued business operations. Defendants should further be ordered to return all materials taken from Oracle. Oracle’s confidential. custody. to Defendants’ copying. unless Defendants are enjoined from such unfair competition. Defendants’ unfair business practices have unjustly minimized Oracle’s competitive advantage and have caused and are causing Oracle to suffer damages. or distribution of such property. and benefits they may have obtained in violation of California Business & Professions Code § 17200 et seq. proprietary. removal. 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. 126. but not limited to. in their possession.
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. 137. profits from potential purchasers of Oracle support services and licensees of Oracle software products. 36 COMPLAINT . 134. Oracle has lost. 135. with interest. Oracle is entitled to restitution of the Defendants’ ill-gotten gains. its access-restricted internet-based support system. In addition. 133. Oracle is entitled to damages and repossession of the converted property. Since that time. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. and other damages in an amount to be proven at trial. Allowing Defendants to retain the benefits received as a result of their wrongful acts would unjustly benefit Defendants at Oracle’s expense. and will continue to lose. At all times mentioned in this Complaint. Defendants’ improper assumption and exercise of dominion and control over Oracle’s property and their likely sale and distribution of the same has and will continue to interfere with and diminish Oracle’s rights in that property. or in the alternative. or in the alternative. at the latest. In addition. As a direct and proximate result of Defendants’ actions. and the Software and Support Materials on that support system. in an amount to be determined at trial. Oracle will seek its election of remedies at trial. as described above. Defendants’ wrongful conduct was a substantial factor in causing this harm. Defendants have been in knowing and unauthorized possession and control of such property since at least between September 2006 and the present. Oracle had legal title to and actual possession of Customer Connection. Seventh Claim for Relief Trespass To Chattels (By Oracle Against All Defendants) 136. 132. Defendants may have been obtaining unjust and substantial benefit from the sale and distribution of Oracle’s property to third parties without Oracle’s consent and without paying Oracle for the value of such property. Oracle is entitled to an award of the value of the property taken.
for which Oracle’s remedy at law is not adequate to compensate it for the injuries inflicted and threatened. Oracle is entitled to recover any and all damages it sustained as a result of such trespass. as well as Defendants’ trespass on. Eighth Claim for Relief Unjust Enrichment/Restitution (By Oracle Against All Defendants) 142. Defendants unjustly received benefits at the expense of Oracle through their wrongful conduct. Defendants’ trespass interfered with. 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. 143. damage to Oracle’s rights to dominion and control over its property. damage to the functionality of Oracle’s computer system and data. 139. As a result. Defendants’ trespass therefore threatens to cause irreparable harm 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. 141. and damaged. 140. including. and conversion of the Software and Support Materials. Defendants continue to unjustly retain these benefits at the 37 COMPLAINT . 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. including Defendants’ interference with Oracle’s business relationships and other unfair business practices. which took substantial time and money for Oracle to develop. and damage to the confidential and copyrighted nature of the information on Oracle’s website. but not limited to. Defendants will continue to commit such acts and other competitors will be encouraged to sweep Oracle’s website. and the Software and Support Materials housed for licensed access through Customer Connection. computer fraud concerning. the integrity and 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. Defendants’ trespass and interference proximately caused damage to Oracle. Defendants intentionally interfered with Oracle’s use or possession of both Customer Connection and Oracle’s related internal databases and 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 expense of Oracle. these wrongful acts was willful. As a direct and proximate result of the acts in furtherance of the conspiracy. and commission of. as well as Defendants’ trespass on. and in conscious disregard of Oracle’s rights. 148. malicious. encouraging. Defendants did the acts alleged pursuant to. or adopting the acts of the others. 146. and conversion of the Software and Support Materials. and knowingly agreed and conspired with each other to engage in the alleged wrongful conduct. damage. Defendants willfully. Ninth Claim for Relief Civil Conspiracy (By Oracle Against All Defendants) 145. that agreement and/or furthered the conspiracy by cooperating. 144. ratifying. and in furtherance of. It would be unjust for Defendants to retain any value they obtained as a result of their wrongful conduct. 147. oppressive. intentionally. 149. loss. The wrongful conduct committed pursuant to the conspiracy was a substantial factor in causing this harm. 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. including Defendants’ interference with Oracle’s business relationships and other unfair business practices. but not limited to. Oracle is accordingly entitled to full restitution of all amounts in which Defendants have been unjustly enriched at Oracle’s expense. 38 COMPLAINT . and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. and harm. computer fraud concerning. including. Oracle has suffered injury. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here.
Oracle has suffered injury. Defendants’ aiding and abetting of these wrongful acts was willful. 152. computer fraud concerning. was wrongful in and of itself. 39 COMPLAINT . loss of profits from sales to current and potential customers of Oracle support services and licenses to Oracle software programs. loss. 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. separately considered. As fully described above. Defendants had full knowledge or should have reasonably known of the true nature of the wrongful conduct of each other Defendant. including interference with Oracle’s business relationships and other unfair business practices. oppressive. As a direct and proximate result of the aiding and abetting of these acts. Defendants also aided and abetted the described wrongful conduct of the other Defendants by giving substantial assistance and/or encouragement that. but not limited to. and conversion of the Software and Support Materials. malicious. 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. and harm. and in conscious disregard of Oracle’s rights. by providing substantial assistance and/or encouraging the others to act. The wrongful conduct aided and abetted by the Defendants was a substantial factor in causing this harm. 151. as well as Defendants’ trespass on. including. damage. 154. 150.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 155. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. 153. and aided and abetted such wrongful conduct.
(2) selling. (c) Willfully converting Oracle’s confidential. employees. proprietary. 158. and those in active concert or participation with any of them from: (1) accessing any Oracle restricted-access or customer website. therefore. agents. servants. at Oracle’s expense.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. including without limitation. to a full accounting. For a preliminary and permanent injunction restraining Defendants. in furtherance of their unlawful and deceptive scheme as described above. 157. including without limitation the Customer Connection website. and valuable 40 COMPLAINT . (d) Fraudulently accessing and intentionally trespassing on Oracle’s password-protected Customer Connection website. Oracle is entitled. including data. but not limited to: (a) Intentionally and/or negligently interfering with Oracle’s prospective economic advantage with its existing and potential customers. and. their officers. Oracle’s confidential. and attorneys. for the purpose of sabotaging Oracle’s ability to do business and compete in the market. or using any property obtained from Oracle’s website. Defendants have obtained business through the use of unlawful conduct including. (b) Improperly. distributing. willfully. 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. without authorization or consent. and unlawfully taking commercial advantage of Oracle’s investment in its Software and Support Materials. Since at least September 2006. proprietary. without Oracle’s authorization. internal documents. and that some or all of such money is rightfully due to Oracle. and copyrighted Software and Support Materials. Defendants have received money as a result of their misconduct. Prayer For Relief WHEREFORE. and copyrighted Software and Support Materials. Oracle respectfully prays for the following: A.
as set forth in this Complaint. setting forth in detail the manner and form in which Defendants have complied with the injunction. That the Court order Defendants to pay Oracle punitive damages in a sum to be determined at trial. B. fixes. proprietary. For prejudgment interest. patches. under oath. fixes. without limitation. fixes. patches. but not limited to Oracle’s confidential. including data. and other computer code. and copyrighted Software and Support Materials. I. (4) otherwise engaging in acts of unfair competition and interference with Oracle’s business relationships. proprietary. 41 COMPLAINT For damages to be proven at trial. C. 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. K. patches. and valuable updates. For restitution and disgorgement of all ill-gotten gains unjustly obtained and retained by Defendants through the acts complained of here. H. Oracle’s confidential. G. D. that Defendants took from Oracle. For an accounting. For an Order directing Defendants to return Oracle’s property. and copyrighted Software and Support Materials. and other computer code. and other computer code. J. and valuable updates. on the basis of their willful and deliberate unauthorized computer access. aiding and abetting and conspiracy. F. Court deems just and proper. including data. internal documents. For an Order awarding Oracle its attorneys’ fees and costs. intentional interference with Oracle’s prospective economic advantage. internal documents. For an Order awarding Oracle such other and further relief as the . including. including.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 updates. and. downloading or copying property from Oracle’s website without Oracle’s authorization. (3) removing.
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