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BINGHAM McCUTCHEN LLP CHRISTOPHER B. HOCKETT (SBN 121539) GEOFFREY M. HOWARD (SBN 157468) ZACHARY J. ALINDER (SBN 209009) BREE HANN (SBN 215695) Three Embarcadero Center San Francisco, CA 94111-4067 Telephone: (415) 393-2000 Facsimile: (415) 393-2286 email@example.com firstname.lastname@example.org email@example.com firstname.lastname@example.org DORIAN DALEY (SBN 129049) JEFFREY S. ROSS (SBN 138172) 500 Oracle Parkway M/S 5op7 Redwood City, CA 94070 Telephone: (650) 506-4846 Facsimile: (650) 506-7114 email@example.com firstname.lastname@example.org
Attorneys for Plaintiffs
Oracle Corporation, Oracle USA, Inc., and Oracle International Corporation
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION
ORACLE CORPORATION, a Delaware corporation, ORACLE USA, INC., a Colorado corporation, and ORACLE INTERNATIONAL CORPORATION, a California corporation, v. Plaintiffs,
CASE NO. COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR: (1) VIOLATIONS OF THE COMPUTER FRAUD AND ABUSE ACT; (2) VIOLATIONS OF THE COMPUTER DATA ACCESS AND FRAUD ACT; (3) INTENTIONAL INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE; (4) NEGLIGENT INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE;
SAP AG, a German corporation, SAP AMERICA, INC., a Delaware corporation, TOMORROWNOW, INC., a Texas corporation, and DOES 1-50, inclusive, Defendants.
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(5) UNFAIR COMPETITION; (6) CONVERSION; (7) TRESPASS TO CHATTELS; (8) UNJUST ENRICHMENT / RESTITUTION; (9) CIVIL CONSPIRACY; (10) AIDING AND ABETTING; AND (11) AN ACCOUNTING. DEMAND FOR JURY TRIAL
Plaintiffs Oracle Corporation, Oracle USA, Inc. (“Oracle USA”), and Oracle International Corporation (“OIC”) (together “Oracle” or “Plaintiffs”) for their Complaint against Defendants SAP AG (“SAP AG”), SAP America, Inc. (“SAP America”), TomorrowNow, Inc. (“SAP TN”), and Does 1 through 50 (collectively referred to as “SAP” or “Defendants”), allege as follows based on their personal knowledge as for themselves, and on information and belief as to the acts of others: I. INTRODUCTION 1. This case is about corporate theft on a grand scale, committed by the
largest German software company – a conglomerate known as SAP. Oracle is a leading developer of database and applications software, and SAP is Oracle’s largest enterprise applications software competitor. 2. Oracle brings this lawsuit after discovering that SAP is engaged in
systematic, illegal access to – and taking from – Oracle’s computerized customer support systems. Through this scheme, SAP has stolen thousands of proprietary, copyrighted software products and other confidential materials that Oracle developed to service its own support customers. SAP gained repeated and unauthorized access, in many cases by use of pretextual customer log-in credentials, to Oracle’s proprietary, password-protected customer support website. From that website, SAP has copied and swept thousands of Oracle software products and other proprietary and confidential materials onto its own servers. As a result, SAP has compiled an illegal library of Oracle’s copyrighted software code and other materials. This storehouse of stolen Oracle intellectual property enables SAP to offer cut rate support services to 1 COMPLAINT
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customers who use Oracle software, and to attempt to lure them to SAP’s applications software platform and away from Oracle’s. Through this Complaint, Oracle seeks to stop SAP’s illegal intrusions and theft, to prevent SAP from using the materials it has illegally acquired to compete with Oracle, and to recover damages and attorneys’ fees. 3. In late November 2006, there occurred unusually heavy download activity
on Oracle’s password-protected customer support website for its PeopleSoft and J.D. Edwards (“JDE”) product lines. That website, called Customer Connection, permits licensed Oracle customers with active support agreements to download a wide array of copyrighted, proprietary software programs and other support materials. Oracle has invested billions of dollars in research, development, and engineering to create these materials, which include program updates, software updates, bug fixes, patches, custom solutions, and instructional documents – all copyrighted by Oracle – across the entire PeopleSoft and JDE family of software products (the “Software and Support Materials”). Customers who have contracted for support with Oracle have log-in credentials to access Customer Connection and download Software and Support Materials. However, Oracle’s support contracts limit customers’ access and download rights to Software and Support Materials pertaining to the customers’ licensed products. Customers have no contractual right to download Software and Support Materials relating to software programs they have not licensed from Oracle, or for which the customers did not purchase support rights. 4. The Software and Support Materials are a subset of the technical support
services that Oracle makes available to its customers that have licensed Oracle software programs and purchased the right to receive technical support services related to them. The full suite of technical support services (also known as “support” or “maintenance”) generally includes three types of offerings that Oracle, like most other enterprise software vendors, makes available to its licensed customers: (i) telephone or email access to Oracle’s support technicians regarding the operation of Oracle’s software; (ii) software program code for the customers’ licensed software programs which adds new functionality or features to the software (generally referred to as “software updates”), or that addresses errors or “bugs” in the software program (generally referred to as “software patches”); and (iii) “knowledge management” articles that 2 COMPLAINT
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help with problem solving and provide suggestions relating to the customer’s use of licensed software programs. Because of the complexity of enterprise software applications and the business environments in which they run, regular software updates and patches and knowledge management articles are critical components of a software maker’s support offering. For purposes of this case, Oracle’s claims against SAP only concern Oracle’s Software and Support Materials, and not Oracle’s provision of telephone or online assistance in response to customers’ support queries. 5. The access and download activity Oracle observed on its systems in late
November and December 2006 did not resemble the authorized, limited access to which its customers were entitled. Instead, SAP employees using the log-in credentials of Oracle customers with expired or soon-to-expire support rights had, in a matter of a few days or less, accessed and copied thousands of individual Software and Support Materials. For a significant number of these mass downloads, the users lacked any contractual right even to access, let alone copy, the Software and Support Materials. The downloads spanned every library in the Customer Connection support website. For example, using one customer’s credentials, SAP suddenly downloaded an average of over 1,800 items per day for four days straight (compared to that customer’s normal downloads averaging 20 per month). Other purported customers hit the Oracle site and harvested Software and Support Materials after they had cancelled all support with Oracle in favor of SAP TN. Moreover, these mass downloads captured Software and Support Materials that were clearly of no use to the “customers” in whose names they were taken. Indeed, the materials copied not only related to unlicensed products, but to entire Oracle product families that the customers had not licensed. 6. For example, in January 2007, a user on an SAP TN computer signed in as
Oracle customer Honeywell International, Inc., a Fortune 100 technology and manufacturing company, to access Oracle’s support system and copy literally thousands of Oracle’s Software and Support Materials in virtually every product library in every line of business. This copying went well beyond the products that Honeywell had licensed and to which it had authorized access. In other examples, users from SAP TN logged in using the credentials of recently 3 COMPLAINT
In some cases. In many instances. Texas. All of these customers whose IDs SAP appropriated had one critical fact in common: they were. Texas IP address used to access and download Oracle’s Software and Support Materials is connected directly to SAP’s computer network. some users logged in with the user names of “xx” “ss” “User” and “NULL. or 4 COMPLAINT . Oracle to date has identified more than 10. SAP blended log-in information from multiple customers with fake information.. 9. These “customer users” supplied user information (such as user name. email address. Across its entire library of Software and Support Materials in Customer Connection.000 unauthorized downloads of Software and Support Materials relating to hundreds of different software programs.” In other cases. and phone number) that did not match the customer at all. this user information did not match anything: it was fake. SAP employees used the log-in IDs of multiple customers. Oracle has found many examples of similar activity. Indeed. Rather. This systematic theft of Oracle’s Software and Support Materials did not originate from any actual customer location. SAP users effectively swept much of the contents of Oracle’s system onto SAP’s servers. The Bryan. including the ones described above. Texas. 7. For example.” Others used phony email addresses like “test@testyomama. 8. to gain access to Oracle’s system under false pretexts. the access originated from an internet protocol (IP) address in Bryan. combined with phony user log-in information. For example. and downloaded Software and Support Materials even after the customer had dropped its support rights with Oracle. Employing these techniques. one user name connected to an SAP IP address appears to have logged in using the credentials of seven different customers in a span of just 15 days – all from SAP computers in Bryan. SAP TN is a company that purports to provide technical support services on certain versions of Oracle’s PeopleSoft and JDE software programs. like Metro Machine Corp.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. an SAP America branch office location and home of its wholly-owned subsidiary SAP TN. Oracle’s server logs have recorded access through this same IP address by computers labeled with SAP identifiers using SAP IP addresses.com” and fake phone numbers such as “7777777777” and “123 456 7897.
developers. and (c) support contracts to keep the software updated and upgraded.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.” Another mused. copyrighted Software and Support Materials. “Oracle Corp. 12. (b) consulting relating to the implementation and operation of the software. in 2003. 5 COMPLAINT .” 13. SAP AG’s hasty acquisition of SAP TN was widely perceived as a response to the new competitive threat from Oracle. an independent software support company founded by former PeopleSoft software engineers. Not by coincidence. SAP apparently has now warehoused an extensive library of Oracle’s proprietary. called Project Fusion. As a result of this illegal activity. and support technicians. SAP AG acquired SAP TN. * 11. SAP AG spokesman Bill Wohl vowed that SAP AG would use SAP TN to “keep the pressure on 1 “JDE” refers to J. As explained below. is developing a ‘super set’ of applications. consulting. Edwards World Solutions. this theft appears to be an essential – and illegal – part of SAP’s competitive strategy against Oracle.D. a software company acquired by PeopleSoft. new customers of SAP TN – SAP AG’s and SAP America’s software support subsidiary whose sole purpose is to compete with Oracle. Inc. and support. One industry analyst stated that. Oracle had previously announced that in January 2005 it would complete its acquisition of PeopleSoft. aimed at taking market share from No. Oracle officially became a player on SAP’s turf. 1 ranked SAP. 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. increasing Oracle’s potency as a competitor to SAP AG for enterprise applications software. Industry observers noted this fundamental shift in the competitive landscape. SAP’s own statements confirmed it. * * In the world of enterprise software applications. Oracle said it has thousands of developers building the new application suite. through SAP America. 10. “After the acquisition of PeopleSoft earlier this year. revenue comes from three basic activities: (a) license of the underlying software. In January 2005.
It certainly did not match Oracle’s investment in development resources. following: · More than 10. the .” 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. crowed “There’s nothing that I love more than to win. 14. Indeed. 15.” Although SAP America President and CEO. As reported in industry publications. or even come close to it. · A systematic pattern of “sweeping” Oracle’s Customer Connection support website from SAP TN servers just days before. Publicly. 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. industry observers deemed the “Safe Passage” program “measurably more aggressive. SAP stole much of the Software and Support Materials directly from Oracle.” 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). Nevertheless. explicitly designed to transition customers away from Oracle products and onto the SAP software platform. Bill McDermott. much less the 50% discount promoted by SAP. Bill McDermott. the 6 COMPLAINT SAP’s unlawful copying and theft includes.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. 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 advertised this strategy as its “Safe Passage” program.000 illicit downloads from Customer Connection between September 2006 and January 2007.” and a sign that “SAP has taken the gloves off. with indications that this number may go significantly higher if traced further back in time. SAP TN’s services “form[ed] the basis of [SAP AG’s] Safe Passage initiative. 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 the day of. SAP America’s CEO. 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].
its many employees. Oracle has no adequate remedy at law for the harm threatened and caused by these acts. the indiscriminate. · The improper access to. and to attempt to convert these customers to SAP software applications.” SAP has been engaged in a systematic program of unfair. · On multiple occasions. and deceptive business practices that continues to this day. authorized customers or through normal access to Oracle’s Customer Connection system.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16. 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. 7 COMPLAINT . Through its illegitimate and illegal business practices. 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. to try to “keep the pressure on Oracle. SAP has taken Oracle’s Software and Support Materials and apparently used them to insinuate itself into Oracle’s customer base. In short. or in some cases on behalf of former Oracle customers with no access rights to Oracle’s Software and Support Materials whatsoever. and theft of. expiration of a new SAP TN customer’s support contract with Oracle. unlawful. in the purported name of customers that had never licensed those products and had no legal access to them. These illegal business practices threaten to cause irreparable harm to Oracle. clearly-marked internal proprietary Oracle support documents not available even to licensed. · Accessing and downloading Software and Support Materials across multiple product lines in multiple lines of business available on the Customer Connection support website. and its customers.
State of California. The corporate relationship of the three named defendants is set forth in the chart below. State of California. OIC is a California corporation duly authorized to do business in the State of California. Oracle USA is a Colorado corporation duly authorized to do business in the State of California. 8 COMPLAINT . 19. Texas. THE PARTIES 17. Oracle Corporation and Oracle USA are the licensees of the copyrights at issue in this action. SAP America is a wholly-owned subsidiary of SAP AG. Directly and through its subsidiaries. with its only place of business in Redwood City. 18. County of San Mateo. Oracle Corporation develops and licenses database and applications software programs and provides related services around the world. State of California. Oracle USA develops and licenses database and applications software programs and provides related services. SAP TN is a Texas corporation with its principal place of business in Bryan. 23. Walldorf. with its principal place of business in Redwood City.. SAP America is a Delaware corporation with its principal place of SAP AG is a German corporation with its principal place of business in business in Newtown Square. Oracle USA is the successor to PeopleSoft USA. OIC is the owner of the copyrights at issue in this action. (“PeopleSoft”) and JDE. Oracle Corporation is a Delaware corporation with its principal place of business in Redwood City. County of San Mateo. Inc. 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. SAP TN is a wholly-owned subsidiary of SAP America. County of San Mateo. 20.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. 22. Pennsylvania. Germany. 21.
SAP AG had both the right and the authority to control the actions of both corporations. or co-conspirator of the others. 25. 26.1 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. subsidiary. At all material times. SAP AG (German Parent Corporation) SAP America (Wholly-owned U. unincorporated association. or otherwise. parent. California. license. inclusive. employee. SAP America and SAP TN advertise. corporation. 27.S. Subsidiary) SAP TN (Wholly-owned U. joint venturer. Oracle will amend this Complaint to allege their true names and capacities when ascertained. through its 100% ownership of both SAP America and SAP TN. sell. servant. each of the Defendants. through its 100% ownership of SAP TN. promote. Subsidiary) Oracle is currently unaware of the true names and capacities of Does 1 through 50. and therefore sues these defendants by such fictitious names. including Does 1 through 50. and specifically this judicial district. At all material times. specifically in this judicial district. and finances the sales and promotional activities of both SAP America and SAP TN throughout the United States and in California. Similarly. had full knowledge of and gave substantial 9 COMPLAINT . representative. partnership. at all material times. was the agent. SAP AG negotiates and enters into software license and support agreements directly within the United States and. By way of example only.S. whether individual. 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. partner. SAP AG also holds an annual meeting of its Board of Directors in Palo Alto. affiliate. service. alter ego. and support customers in California and in this judicial district. SAP America had both the right and authority to control the actions of SAP TN. Defendants all are doing business in and/or have directed their activities at California.
C.C. Oracle is the world’s largest enterprise software company. Oracle’s Software and Support Materials 32. § 1331. V.S. partnership. and each is legally responsible for the acts and omissions of the others.S.S. 17 U. Power & Associates’ global certification for outstanding service and support based 10 COMPLAINT . 29. because a substantial part of the events giving rise to the dispute occurred in this district. III. VI. § 1030(g) and 28 U. pursuant to 28 U. and the Court has personal jurisdiction over each of the parties as alleged throughout this Complaint. and the Court will have subjectmatter jurisdiction over those claims pursuant to 28 U. This Court has supplemental subject matter jurisdiction over the pendent state law claims under 28 U. joint venture. INTRADISTRICT ASSIGNMENT 31.C. Venue in this district is appropriate.S. § 1338. and in doing the things alleged.C.D. a substantial part of the property that is the subject of the action is situated in this district. In addition.R.S..S. 18 U. Assignment is proper in this division under Civil L. 3-2 (c) and (d). FACTUAL ALLEGATIONS A. representation. IV. Oracle’s first cause of action arises under the Computer Fraud and Abuse Act.C. each was acting within the scope of such agency. § 1391. § 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. employment. JURISDICTION 28.S. §§ 1030 et seq. and the first to receive J. §§ 101. or conspiracy. Oracle will seek to amend this Complaint to add claims for copyright infringement under the Copyright Act. when the relevant copyright registrations issue. and this Court has subject-matter jurisdiction over this action pursuant to 18 U.C. because a substantial part of the events giving rise to the claims occurred in San Mateo County and a substantial part of the property that is the subject of the action is situated in San Mateo County. et seq. service. affiliation..C. VENUE 30.1 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.
product or upgrade announcements. WITHOUT LIMITING THE FOREGOING. and (3) no modifications of any Documents are made. agree to additional legal restrictions. These terms notify the user that the software available to download from Oracle is Oracle’s copyrighted material. COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. 41. press releases. The Legal Download Agreement further restricts use of documents downloaded from the website: Permission to use Documents (such as white papers. In addition. All Software is confidential information of Oracle / PeopleSoft / JDEdwards and its use and distribution is governed by the terms of the software license agreement that is in effect between you and Oracle / PeopleSoft / JDEdwards (“License Agreement”). the user must click on a button indicating that it accepts these terms. 13 COMPLAINT . 42. (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. Use for any other purpose is expressly prohibited. users accessing specific materials. The terms further provide that the “software is part of the Licensed Products under the License Agreement” and “is made available for downloading solely for use by licensed end users according to the License Agreement. The 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.” 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. provided that (1) the below copyright notice appears in all copies and that both the copyright notice and this permission notice appear. Any reproduction or redistribution of the Software not in accordance with the License Agreement is expressly prohibited. datasheets and FAQs) from this server (“Server”) is granted.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. such as a Software Application Request (“SAR”) through the SAR Search Web Application.
SAP AG suddenly found itself in a far different competitive environment than the one in which it had grown comfortable. Oracle Threatens To Unseat SAP 43. the combination revitalized Oracle overnight as a competitor in the business software applications business. 45. 2005. testified on June 23. On January 7. 14 COMPLAINT .000 business applications software customers throughout the world. Oracle would “not [be] a competitor which could really hurt us. Not only do many SAP AG customers use Oracle’s superior database software programs. SAP AG instead considered how to undermine Oracle.000 people joining by Webcast and phone. these same products. he even claimed to wish Oracle “good luck” in competing with SAP AG. SAP AG CEO Henning Kagermann claimed that even with 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. and geographic and product scope.” After the merger. 44. at its headquarters with more than 48. 46.000-strong combined workforce of Oracle and PeopleSoft would provide unparalleled innovation and support to 23. 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. Oracle launched the newly-united company and unveiled. despite not owning any of the software code for. As SAP AG reeled. size. broader product line of enterprise applications software programs to compete against SAP AG. but now Oracle offered a deeper.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. 2004 at the trial on the Department of Justice’s unsuccessful effort to block Oracle’s acquisition of PeopleSoft. events unfolded at a rapid pace: eleven days after its announcement. or intellectual property rights to. But SAP AG had no answer for the business proposition the new Oracle offered. 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. Rather than improve its own products and offerings. As SAP America’s Vice President of Operations. how the nearly 50. Richard Knowles.
As one industry journalist explained. SAP TN 47. and to use SAP TN to do it. SAP AG proposed to buy SAP TN outright and make it a wholly-owned – and wholly-beholden – subsidiary. As described in a glossy spread in a leading industry publication. SAP Responds To Oracle Competition With Its “Safe Passage” Scheme 48. but – with the Oracle/PeopleSoft 15 COMPLAINT . SAP AG has refused to disclose the terms of its SAP TN purchase.” Aligning with SAP AG made little sense for 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 C.” Mackey made Nelson an offer “he couldn’t refuse. So SAP AG had to make the price right. Texas and founded by former PeopleSoft employees. often outdated.” 49. As one industry observer put it. Acquiring SAP TN was not a mere investment by SAP AG. 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. In December 2004. It claimed to compete with PeopleSoft. Oracle. because to the extent SAP AG successfully undermined Oracle by having its customers move from Oracle’s software to SAP AG’s software. To retain full control over every detail of its scheme to lure away customers from Oracle. 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. however. SAP TN president Andrew Nelson got “the magic phone call” from Jim Mackey. SAP TN was a small software services company.” D. JDE. but a calculated competitive move. just weeks before Oracle would close the PeopleSoft acquisition. in December 2004. SAP TN would eventually lose its customer base. 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. it instead focuses on simply keeping the software up and running for an annual fee. headquartered in Bryan. and later. by providing low-cost maintenance and support services to PeopleSoft and JDE customers running assorted versions of these software programs. SAP AG bought “another arrow in its quiver to hunt after Oracle’s customers. SAP AG’s “front man for SAP AG’s mergers and acquisitions strategy.
SAP TN’s new parent companies directed it to begin to implement a two-phase plan to increase SAP’s enterprise application market share. On January 19. admitted that the SAP TN acquisition was “an integral part” of SAP’s Safe Passage program. identified SAP TN as instrumental to the parent company’s “Safe Passage” program. Henning Kagermann. SAP America’s CEO. 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 TN agreed to the deal and cast its lot with SAP AG. The CEOs stated the proposition more bluntly.” 16 COMPLAINT . In April 2005. to lure the support business over.” The Senior Vice President and Chief Operating Officer of SAP Asia Pacific. Bill McDermott. Second. ease integration with SAP NetWeaver(TM) and begin the process of innovating their businesses today. SAP AG would try to use SAP TN as a means of “speeding-up” the migration of PeopleSoft and JDE users to SAP platforms.” And SAP TN certainly knew its role was to achieve SAP AG’s ends: as SAP TN’s CEO. After the acquisition. First. publicly indicating that SAP TN was authorized and intended to implement SAP AG’s goals. 50. SAP would offer cut-rate pricing combined with the promise of essentially unlimited future support to former PeopleSoft and JDE support customers. stated. SAP America CEO Bill McDermott claimed “The SAP Safe Passage offering gives companies an affordable way to protect their current investments. publicly vowed to bankroll this effort to undermine Oracle by putting “a lot of additional resources into TomorrowNow. at the SAP AG annual meeting. SAP AG’s top executives unveiled SAP AG’s acquisition of SAP TN as the centerpiece of its new “Safe Passage” scheme.” A month later.” 51. As SAP AG Managing Director Alan Sedghi admitted. SAP AG’s CEO. in connection with converting Oracle customers to SAP support (via SAP TN). We want them to be successful. 52. 2005. which in turn was part of SAP’s “ongoing strategy to compete with 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 deal about to close – the “magic phone call” conveyed terms rich enough that. SAP would aggressively campaign to migrate those customers to an SAP enterprise software platform. “We're owned by SAP. in barely a month. Colin Sampson. Andrew Nelson.
JD Edwards. 17 COMPLAINT .000 direct mail solicitations to Oracle customers. To implement Phase Two of its plan (luring Oracle customers to the SAP enterprise software platform).” To exploit the fear it intended to create. Instead. If customers declined to convert to SAP TN. it took a hands-on approach. technology and maintenance services.” SAP TN’s website confirms its acceptance and undertaking of the SAP-controlled Safe Passage program: “TomorrowNow can also provide our support services as part of the SAP Safe Passage Program. SAP AG did not simply sit back and leave the recruiting of potential Safe Passage customers to SAP TN’s sales force.” (emphasis supplied) SAP America’s website promises that “SAP and TomorrowNow can cut your maintenance costs by as much as 50% through 2015. An April 2005 SAP AG press release apparently aimed to increase perceived doubt among Oracle customers by announcing a “second wave” of “Safe Passage. quality support from Oracle.” 54. SAP AG’s “second wave” included “an intensive customer recruitment campaign. officially “bundled” with SAP AG enterprise software as a centerpiece of the Safe Passage program. SAP sales representatives unleashed a torrent of marketing materials designed to exacerbate and leverage perceived. It deployed its salespeople to contact potential customers and push them to switch to SAP TN’s services. SAP AG offered maintenance support through SAP TN.” and elsewhere says that “Safe Passage maintenance and support are delivered worldwide through TomorrowNow. albeit unfounded. and Siebel customers – If Oracle’s options have you worried. Beginning in January 2005. offering significantly lower cost maintenance alternatives to Oracle customers running PSFT/JDE solutions” through 70. PeopleSoft and JDE customer uncertainty about the prospects for long-term. These lower cost alternatives advertised by SAP AG were to come directly through SAP TN. As reflected on SAP AG’s website: “SAP offers Safe Passage for 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 53. the SAP AG sales personnel would pressure the customers to drop Oracle products outright in favor of SAP AG’s suite. To give teeth to these commingled sales efforts. consider another option: SAP. SAP provides solutions. SAP implemented Phase One immediately. 55.
SAP executives touted the Safe Passage program’s limited success in its first year.” 57. However. SAP announced it would extend its Safe Passage program to Siebel 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 56. SAP AG CEO Henning Kagermann conceded that SAP had lost as much as 2% market share to Oracle. 58. SAP AG continued to tout the success of Safe Passage. By March 2006.” including because SAP AG “extended the program in order to offer it as well to Siebel 18 COMPLAINT . curiously. as Oracle continued to take market share and expand its product offerings. SAP America President and CEO. investment protection and a clear road map to the next generation of business software.” SAP’s “cheaper price” (referred to elsewhere as “cut rate” support) continued at “50 cents on the dollar for maintenance fees. the program it implemented partly through SAP TN. In October 2005. “SAP AG plans to announce . . As reported on Forbes.’s own products [the Siebel products] for a far cheaper price. promised SAP AG would use SAP TN and the Safe Passage program to “fight for” more customers. SAP grew more desperate.com after Oracle’s announcement of its impending Siebel acquisition. that it will offer technical support for more of rival software maker Oracle Corp.” but its services were expanded to support more Oracle product lines and a wider range of customers. round the clock Siebel code support within a few weeks of Oracle’s acquisition announcement remained a mystery. and which it claimed “offers companies SAP solutions. companies and corporate cultures. 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. Henning Kagermann. technology. SAP AG’s President of Customer Solutions and Operations. 2005 announcement that it would acquire Siebel Systems.” How SAP could offer instantaneous. Léo Apotheker. and more aggressive. . boasted that Safe Passage “continues to do really well. SAP AG’s CEO. SAP AG boasted in a press release that more than 200 customers had signed up for Safe Passage. 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. including through its September 12. At the same time. maintenance services. Bill McDermott. In a July 2006 earnings call.
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. 61.” By extending the Safe Passage program to Siebel customers. “customized ongoing tax and regulatory updates.” E. even after having expanded its ranks to 150 employees. Oracle has now solved this puzzle. by comparison.” and. 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 . The SAP Solution: Stolen Passage 1. The economics. and other labor-intensive support items that a customer would need to maintain useful. without infringing on Oracle’s intellectual property. as it did on its website and its other materials. and in conjunction with opening new SAP TN offices around the world. To stave off the mounting competitive threat from Oracle. 24x7x365” on software programs for which it had no intellectual property rights. Apotheker claimed that SAP now had “a global network of [SAP TN] capabilities” – enough to “gain significant traction. 60. F.000 software and support engineers to create and help implement the code fixes. could actually develop and offer the hundreds of regulatory updates. “30-minute response time. patches. SAP continued to offer this comprehensive support to hundreds of customers at the “cut rate” of 50 cents on the dollar. and purported to add full support for an entirely different product line – Siebel – with a wave of its hand. patches. Oracle. simply did not add up. and the logic. maintains a development force of more than 15. bug fixes. Oracle Finds A Suspicious Pattern To analyze and improve on its industry leading support services. 62. some industry analysts wondered whether a small company like SAP TN. most remarkably.” “fixes for serious issues.” “full upgrade script support. It was not clear how SAP TN could offer. A Deal Too Good To Be True 59. To compound the puzzle. Although SAP put a brave face on its ability to compete with the increasingly potent Oracle applications offerings. optimally functioning Oracle software. and updates that comprise the advanced support services required by Oracle’s licensed customers. SAP unlawfully accessed and copied Oracle’s Software and Support Materials.
authorized use of Customer Connection. the support system responds by offering the customer further options. 63. Instead. In the course of this investigation. 64. in the month before a customer’s Oracle support expired. 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 also discovered that the downloaded Software and Support Materials included internal documents not available even to licensed customers and not available through normal. unexplained spikes in the number of customers on the online support website who had clicked the “No. In late 2006. Oracle discovered a pattern. And. Oracle soon discovered that many of these “customers” had taken massive quantities of Software and Support Materials beyond their license rights. Given the extreme speed at which the activity occurred. these clicks could not reflect real responses from any human customers actually reading the solutions they had accessed. to take a copy of them all. These clicks numbered in the thousands for several customers. 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. 20 COMPLAINT . Frequently. including dozens. Oracle regularly compiles this data to assess whether its system helped customers resolve their support issues. continue search” option. 65. a user purporting to be that customer. would access Oracle’s system and download large quantities of Software and Support Materials. Indeed.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. continue search” option. Some of these apparent customer users even downloaded materials after their contractual support rights had expired. Oracle noticed huge. employing the customer’s log-in credentials. or thousands of products beyond the scope of the specific customer’s licensed products and permitted access. If the customer selects the “No. 2. and Oracle discovered that each response – each answer by users pretending to be the customer – occurred in a matter of seconds or less. with the aim of continually improving the support system for customers. apparently. hundreds. over and over again.
(5) Nigel Pullan.P. International Sales. North American Sales. V. · That the customer username and password may only be distributed to persons in the customer’s organization who have a legitimate business purpose for accessing the materials contained on the support server in furtherance of the customer’s relationship with Oracle. · That the customer username and password are for the customer’s sole use in accessing this support server. · That the Materials on the support website are confidential information subject to existing confidentiality agreements. who is reflected as the person performing many of the downloads at issue. including: (1) Andrew Nelson. SAP TN has intimate familiarity with these important restrictions and conditions relating to Oracle’s Software and Support Materials. (3) Laura Sweetman. relicense. for third party use.P. six list prior employment experience with 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 70. Edwards Support. V. or Oracle. V. such as Wade Walden. sublicense. President and CEO. Quality. SAP TN’s management. use. and a significant number of its employees. (4) Mel Gadd. appear to have applied their familiarity with the Customer Connection website to directly participate in and perfect the illegal 22 COMPLAINT . or any portion thereof. rent.D. Of SAP TN’s tenmember management team. V.P. disclose. · Not to directly or indirectly. V.P.P. and (6) Shelley Nelson. (2) Bob Geib. former PeopleSoft employees who work for SAP. distribute. JDE. · Not to access the customer support system if it is not the customer’s authorized and designated Oracle technical support contact. formerly worked at PeopleSoft and JDE. In addition. or lease the Software or Documentation. Global PeopleSoft Support. or third party training. Global J. · 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.
NGC Management Limited. By way of example 24 COMPLAINT . Interbrew UK.. 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. B.V. and impose strict confidentiality requirements. Honeywell International. Bear. Stora Enso. and covers too many individual violations.. Texas Association of School Boards.. publish. Abbott Laboratories. and distribute these works. including without limitation. Metro Machine Corp. Fuelserv Limited.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.. 74.C.. Inc. Border Foods.A. display. to comprehensively detail here.C. Distribution & Auto Service. and therefore committed its theft knowingly and intentionally. National Manufacturing. reproduce. Laird Plastics. offer for sale. create derivative works. SPX Corporation. and in conscious disregard of Oracle’s protected intellectual property and the integrity of its computer systems. Herbert Waldman. VSM Group AB. SAP TN reviewed and agreed to the terms and conditions on Oracle’s support website before proceeding. Helzberg Diamonds. Grupo Costamex. § 506. Ronis. Inc. Stearns & Co. Merck & Co. Smithfield Foods..S. 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. 75.. Caterpillar Elphinstone. OCE Technologies. §§ 101 et seq.S. Specific Examples Of SAP TN’s Unlawful Customer Downloads SAP TN’s improper access to. Oracle has uncovered unlicensed downloads linked to SAP TN on behalf of numerous customers. Oracle’s Customer Connection website is too pervasive. Accordingly. § 501 and also willful and intentional copyright infringement under 17 U. S. Berri Limited. 4. 17 U. 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. and taking from. and Yazaki North America. AbitibiConsolidated.S.C. Mortice Kern Systems. Such acts constitute copyright infringement under 17 U. With literally thousands of software programs available for licensing. SAP TN’s acts violated Oracle’s exclusive rights to use.
the unauthorized downloads did not stop there. one of the largest pharmaceutical companies in the world. 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. In the approximately three and a half year period before Honeywell switched to SAP TN. Oracle sets forth below illustrative instances of SAP TN’s illegal conduct regarding a few of its customers. In one specific library containing solutions for Enterprise One software. Oracle subsequently connected many of the illegal downloads to an SAP TN IP address and to SAP TN’s employee. But. 2007 and nearly 400 more the next day. Then. Over 2. Honeywell. Many of these “Merck” downloads came directly from an IP address in Bryan. Merck & Company. This unlawful downloading even stretched across product families. Honeywell used and licensed PeopleSoft software applications. More than 5. Merck’s support rights for its JDE software products expired on January 1. after switching to SAP TN.000 Software and Support Materials in less than two weeks in January 2007. 77. Wade Walden – a former PeopleSoft employee now employed by SAP.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.000 distinct Software and Support Materials for JDE software. 2007. a user employing Honeywell’s log-in ID downloaded over 7. licenses and receives support for many Oracle software products. Most of these excessive downloads came during the course of four days.000 of the Software and Support Materials taken in this period were solutions that Honeywell was not licensed to take at all. but Oracle discovered users downloading JDE products with Honeywell’s credentials. Honeywell International (“Honeywell”) is listed on SAP TN’s website as a client. users purporting to be “Merck” logged into the Oracle support system and downloaded over 9. (“Merck”). Merck. 25 COMPLAINT . it averaged just over 20 downloads of Software and Support Materials per month. 76. Inc. Users logging into Oracle’s support system with Merck’s credentials continued to download Software and Support Materials into March 2007. In the three months prior to that date. “Honeywell” downloaded over 450 distinct unlicensed solutions on January 16. during which “Honeywell” was downloading almost 1800 solutions per day.
such as the name “user” and phone numbers such as “123 456 7897. and neither OCE nor SAP TN have any license. in some cases. and some were traced to a computer with SAP TN’s initials in the title. SAP TN users employed fake identification information to download the Software and Support Materials. since OCE does not run many of the software programs to which these downloads relate. Canadian Payroll. Like the other companies. These downloads included over 3. 78. OCE. authorization or other right to access and download the 5.” Neither Merck nor SAP TN had any license. these illegal downloads are associated with the same IP address belonging to SAP TN in Bryan. Homebuilder Management. From December of 2006 to January of 2007. authorization. There is little chance that SAP TN intended OCE as the beneficiary of these massive sweeps. “TN-DL03. many of these “OCE” users entered phony identification information. and could serve no legitimate or lawful business purpose.V.” In many cases. false user names) and downloaded over 12. In the months leading up to the expiration of OCE’s support rights for its Oracle products. including specifically to a computer with SAP TN’s initials in the title.” “9999999999.1 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.” 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.000-plus unlicensed Software and Support Materials from Oracle.” and even “xxx xxx xxxx. and Real Estate Management – none of which make sense coming from a European customer in support of its European business. SAP TN users logged into Oracle’s support system using OCE’s credentials (and.” and phone numbers such as “4444444444” and “999 999 9999. users employing OCE’s credentials downloaded a large number of Oracle products relating to US Payroll. Texas.” Similar to the other customer examples. OCE-Technologies B. “TNL-02. or other right to access and download these Software and Support Materials.000 distinct Software and Support Materials. (“OCE”) is located in the Netherlands and appears as a customer on SAP TN’s website. 26 COMPLAINT . using names such as “xx” “ss” and “NULL.000 distinct items for which OCE had no license.
2006 were Software and Support Materials related to unlicensed Payroll software. at SAP AG’s and SAP America’s direction. SAP TN now claims to have delivered thousands of fixes and more than 800 tax and regulatory updates to Oracle’s former customers. 2006 and became an SAP TN customer. In addition. SAP AG and SAP America directed this 27 COMPLAINT . SAP TN. Metro Machine Corp. users purporting to represent Metro Machine logged onto Oracle’s support servers and downloaded nearly 6.700 distinct Software and Support Materials for which SPX had no license.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 79. These SPX downloads included over 1. Over 300 distinct downloads just on November 30. users logging into Oracle’s support system with Metro Machine’s credentials continued to download Software and Support Materials into March 2007. In some cases. In the month before Metro Machine dropped its support rights with Oracle. and some were traced to a computer with SAP TN’s initials in the title. as reflected on SAP TN’s website. SPX Corporation (“SPX”) dropped all Oracle support on December 10. Metro Machine. 2007 and switched to SAP TN. SPX. like the others.” 80.000 distinct Oracle Software and Support Materials (far more than SPX could legitimately access or use).” Many of these SPX downloads. these users logged in using SPX credentials. Then. but used fake identification information like the name “NULL” and phone numbers like “7777777777” and “999 999 9999. users purporting to represent SPX accessed and downloaded over 8. SPX averaged approximately eleven downloads per month from Oracle’s support system. Oracle has traced these illegal and unauthorized downloads to the same SAP TN IP address employed for the Honeywell downloads described above. SAP Adds The Ill-Gotten Gains To Its Coffers 81. between October and December 2006. originated from the same IP address belonging to SAP TN. (“Metro Machine”) dropped all Oracle support effective on January 1. listed on its website.000 distinct Software and Support Materials. For the nine month period prior to October 2006. “tn-wts01. Nearly 400 of those downloads related to software programs that Metro Machine had not licensed from Oracle. Not coincidentally. illegally downloaded thousands of fixes and updates from Oracle’s restricted customer support website. G.
and prospective customers and the associated license and support revenue to artificially inflate its market share.S. without authorization or by exceeding authorized access to such a computer. code.S. 84.S. and by means of such conduct furthered the intended fraud and obtained one or more things of value. Defendants have violated the Computer Fraud and Abuse Act. 28 COMPLAINT . without authorization or by exceeding authorized access to such a computer. and by obtaining information from such a protected computer. current. 18 U. interference with Oracle’s business relationships.C. and never disavowed it.S. § 1030(a)(2)(C). by intentionally accessing a computer used for interstate commerce or communication. SAP has thereby caused significant damage to Oracle through its SAP TN subsidiary. ratified it. 18 U. including but not limited to Oracle’s Software and Support Materials. trespass on Oracle’s support website.C. SAP has illegally converted Oracle’s former. Using Oracle’s own protected property to unfairly compete against and undercut Oracle. 85. § 1030(a)(5)(A)(i) by knowingly causing the transmission of a program. accessing a protected computer. 18 U. information. 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. § 1030(a)(4) by knowingly. 83. First Claim for Relief Violation of Federal Computer Fraud and Abuse Act (18 U.C. or command and as a result intentionally causing damage without authorization to a protected computer owned by Oracle.C. and related computer fraud. Defendants have violated the Computer Fraud and Abuse Act. in addition to the irreparable harm caused by Defendants’ unfair competition. §§ 1030(a)(2)(C) & (a)(4) & a(5)) (By Oracle Against All Defendants) 82.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 download scheme. Defendants have violated the Computer Fraud and Abuse Act.
computer system. and without permission accessing and using Oracle’s computer services. and without permission providing. Penal Code § 502 (By Oracle Against All Defendants) 90. 91. and files from Oracle’s computers. copying. § 1030(g).C. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. Unless restrained and enjoined. Defendants have violated California Penal Code § 502(c)(6) by knowingly.S. Defendants have violated California Penal Code § 502(c)(2) by knowingly and fraudulently. Oracle has suffered damage and loss by reason of these violations.C. taking. causing damage to Oracle. accessing. a means of accessing Oracle’s computers.S. Defendants’ unlawful access to and theft from Oracle’s computers also have caused Oracle irreparable injury. Defendants will continue to commit such acts. and without permission. without limitation.C. and computer systems and other losses and damage in an amount to be proved at trial. entitling Oracle to remedies including injunctive relief as provided by 18 U. fraudulently.Cal. and making use of programs. 87. programs. but. fraudulently. 88. 89. 29 COMPLAINT . Second Claim for Relief Computer Data Access and Fraud Act .S. § 1030(e)(2). 18 U. computer system. 92. 93. Defendants have violated California Penal Code § 502(c)(3) by knowingly. Oracle’s remedy at law is not adequate to compensate it for these inflicted and threatened injuries. and/or computer network.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 86. The computer system or systems that Defendants accessed as described above constitute a “protected computer” within the meaning of 18 U. including. and/or computer network. or assisting in providing. data. recklessly or without due regard for their actions. in an amount well over $5000 aggregated over a one-year period. harm to Oracle’s data. in any event. Defendants have violated the Computer Fraud and Abuse Act. §§ 1030(a)(5)(A)(ii) & (iii) by intentionally accessing a protected computer without authorization.
Oracle’s computers. there is a 30 COMPLAINT . 95. Defendants have caused damage to Oracle in an amount to be proven at trial. Oracle owns the data that comprises the Software and Support Materials obtained by Defendants as alleged above. These relationships contained the probability of future economic benefit in the form of profitable support service contracts and software licenses. Had Defendants refrained from engaging in the unlawful and wrongful conduct described in this complaint. 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. 96. Oracle is therefore entitled to punitive damages. and due to the continuing threat of such injury. Oracle has an expectancy in continuing and advantageous economic relationships with current and prospective purchasers and licensees of Oracle’s support services and software. 97. or causing to be accessed. 100. Oracle has also suffered irreparable injury from these acts. Third Claim for Relief Intentional Interference With Prospective Economic Advantage (By Oracle Against All Defendants) 99. fraudulently.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. 98. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. As a direct and proximate result of Defendants’ unlawful conduct within the meaning of California Penal Code § 502. and without permission accessing. entitling Oracle to injunctive relief. Oracle is also entitled to recover its reasonable attorneys’ fees pursuant to California Penal Code § 502(e). 101. has no adequate remedy at law. computer system. and/or computer network. Defendants have violated California Penal Code § 502(c)(7) by knowingly.
Defendants gained unauthorized access to Oracle’s password-protected Customer Connection support website through false or improper credentials. 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 substantial probability that Oracle support customers would have initiated. fraud and related activity in connection with an access device. but not limited to. 18 U. in some cases. including. wire fraud. loss of profits from sales or licenses to 31 COMPLAINT . Penal Code § 496. Cal. 106. and used that property to obtain and retain Oracle’s current and prospective clients. As a direct and proximate result of Defendants’ actions. the above-described relationships have been actually disrupted. unauthorized access to computers. 18 U. § 1029. constitutes violations of numerous state and federal statutes and codes.S. violation of RICO. § 1962.C.C. or expanded support contracts and software licenses with Oracle rather than Defendants. and without the cost of competing fairly by independently developing the same support materials. Defendants’ conduct was wrongful by a measure beyond the fact of the interference itself. including. 104. Defendants’ conduct also constitutes trespass to chattels. § 1030 et seq. 18 U. 103. As a result of Defendants’ acts.S. and conspiracy.. 105. copied Oracle’s intellectual and contractual property. 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. These acts were undertaken by Defendants to obtain for themselves the software support contract revenue at Oracle’s expense. for their enterprise software. Penal Code § 502. This conduct. violation of the Federal Computer Fraud and Abuse Act. unjust enrichment. § 1343. as alleged above. conversion.C. On information and belief. 102. §§ 270111. but not limited to. Cal.C. 18 U.C. and violation of the Stored Communications Act. 18 U.S. Oracle has suffered economic harm.S. causing certain current and prospective support clients to contract with Defendants instead of Oracle for their software support and maintenance and.S. receipt of stolen property. and ultimately to migrate such customers away from Oracle’s software programs and onto their own.
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. they used Oracle’s Software and Support Materials to obtain and retain for themselves software 32 COMPLAINT . Had Defendants refrained from engaging in the unlawful and wrongful conduct described in this complaint. Defendants’ wrongful conduct was a substantial factor in causing this harm. and in conscious disregard of Oracle’s rights. malicious. oppressive. Fourth Claim for Relief Negligent Interference With Prospective Economic Advantage (By Oracle Against All Defendants) 109. or expanded support contracts and software licenses with Oracle rather than Defendants. Oracle has an expectancy in continuing and advantageous economic relationships with current and prospective purchasers and licensees of Oracle’s support services and software. there is a substantial probability that Oracle support customers would have initiated. 108. 112. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. 111. Unless Defendants are restrained by appropriate injunctive relief. 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. 110. described above. Defendants’ interference with Oracle’s prospective economic advantage with its current and future customers. their actions are likely to recur and will cause Oracle irreparable injury for which there is no adequate remedy at law. renewed. was willful. 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. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. Instead. 107. Defendants failed to act with reasonable care.
113. loss of profits from sales to current and potential customers of Oracle support.. Oracle has suffered economic harm. § 1029. and used that property to obtain and retain Oracle’s current and prospective clients. Cal. 115. as alleged above. but not limited to. 116. wire fraud. and conspiracy.S. conversion. §§ 270111. copied Oracle’s intellectual and contractual property. including.S.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 support contract revenue at Oracle’s expense and without the cost of competing fairly by independently developing the same support materials. 18 U.C. the above-described relationships have been actually disrupted. 18 U. 33 COMPLAINT . Defendants’ conduct also constitutes trespass to chattels. maintenance. Penal Code § 502.S.S. 18 U. fraud and related activity in connection with an access device. their actions are likely to recur and will cause Oracle irreparable injury for which there is no adequate remedy at law. and software products. 114. causing certain current and prospective support clients to contract with Defendants instead of Oracle for their software support and maintenance and. unjust enrichment. § 1030 et seq. including. and violation of the Stored Communications Act.C. 117. violation of RICO. Unless Defendants are restrained by appropriate injunctive relief. constitutes violations of numerous state and federal statutes and codes. unauthorized access to computers.S. § 1962.C. Defendants gained unauthorized access to Oracle’s password-protected Customer Connection support website through false or improper credentials. As a direct and proximate result of Defendants’ actions. receipt of stolen property. Penal Code § 496. Defendants’ conduct was wrongful by a measure beyond the fact of the interference itself.C. Defendants’ wrongful conduct was a substantial factor in causing this harm. Cal. for their enterprise software. § 1343. This conduct. in some cases. 18 U. 18 U. violation of the Federal Computer Fraud and Abuse Act. As a result of Defendants’ acts. but not limited to.
Penal Code § 496. § 1343. Cal.S. but not limited to. Penal Code § 502. including. receipt of stolen property. unlawful. and other illegal acts and practices as alleged above.C.Cal. interference with business relationships. §§ 1030 et seq.S.S. fraud and related activity in connection with an access device. all in an effort to gain unfair competitive advantage over Oracle. 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 also constitutes trespass to chattels. Fifth Claim for Relief Unfair Competition . proprietary. intentional interference with prospective economic advantage. et seq. 119. 34 COMPLAINT . §§ 2701-11.C. 18 U. and conspiracy. Code §§ 17200.C. § 1962. & Prof.. and violation of the Stored Communications Act. 123. conversion.S. 18 U. 120. § 1029. Defendants have improperly and unlawfully taken commercial advantage of Oracle’s investment in its confidential. 18 U. violation of RICO. negligent interference with prospective economic advantage. 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.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. unauthorized access to computers. 18 U. and unfair competition as defined by California Bus. Bus.C. & Prof.S. trespass. 121.C. violation of the Computer Fraud and Abuse Act. unjust enrichment. Defendants’ conduct constitutes violations of numerous state and federal statutes and codes. and copyrighted Software and Support Materials. In light of Defendants’ conduct. wire fraud. Cal. 122. 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. The acts and conduct of Defendants constitute fraudulent. conversion. Defendants have engaged in unlawful business acts or practices by committing acts including computer fraud. 18 U.
expressly or impliedly. 125. but not limited to. and all copies of such. and copyrighted Software and Support Materials. Defendants should further be ordered to return all materials taken from Oracle. 130.. returning the value of the stolen property itself and any revenue earned from it. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. including. or control. or distribution of such property. Oracle has also suffered irreparable injury and. compensation. custody. profits. unless Defendants are enjoined from such unfair competition. unfair. and benefits they may have obtained in violation of California Business & Professions Code § 17200 et seq. to Defendants’ copying. Oracle’s confidential. Sixth Claim for Relief Conversion (By Oracle Against All Defendants) 127. including. removal. 35 COMPLAINT . 128. 126. Defendants’ unfair business practices have unjustly minimized Oracle’s competitive advantage and have caused and are causing Oracle to suffer damages. downloading. This property is the sole and exclusive property of Oracle. Defendants should be compelled to disgorge and/or restore any and all revenues. retention. in their possession. whereby Oracle has no adequate remedy at law. Defendants intentionally and willfully entered Oracle’s password-protected Customer Connection support website without permission and took possession of Oracle’s property. Oracle has an exclusive right to possession and distribution of such property. earnings. which is valuable to Oracle and vital to its continued business operations. but not limited to. all of which Oracle stored on its computer system. and should be enjoined from further unlawful. As a result of such unfair competition. Instead of paying Oracle for the use of its property. Oracle at no time consented. and deceptive business practices. 129. proprietary.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. will continue to suffer irreparable injury.
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 had legal title to and actual possession of Customer Connection. 36 COMPLAINT . and will continue to lose. its access-restricted internet-based support system. at the latest. Oracle is entitled to an award of the value of the property taken. or in the alternative. Oracle will seek its election of remedies at trial. Since that time. as described above. Defendants’ wrongful conduct was a substantial factor in causing this harm. and the Software and Support Materials on that support system. 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 has lost. 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. in an amount to be determined at trial. 133. As a direct and proximate result of Defendants’ actions. 135. with interest. In addition. Oracle is entitled to restitution of the Defendants’ ill-gotten gains. 132. Seventh Claim for Relief Trespass To Chattels (By Oracle Against All Defendants) 136. Allowing Defendants to retain the benefits received as a result of their wrongful acts would unjustly benefit Defendants at Oracle’s expense. or in the alternative. At all times mentioned in this Complaint. 134. 137. Defendants have been in knowing and unauthorized possession and control of such property since at least between September 2006 and the present. Oracle is entitled to damages and repossession of the converted property.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 131. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. In addition.
Defendants unjustly received benefits at the expense of Oracle through their wrongful conduct. and damaged. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. 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. in an amount to be determined at trial. Defendants’ trespass interfered with. as well as Defendants’ trespass on. computer fraud concerning. 143. Defendants intentionally interfered with Oracle’s use or possession of both Customer Connection and Oracle’s related internal databases and systems. 140. 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. 139. for which Oracle’s remedy at law is not adequate to compensate it for the injuries inflicted and threatened. Defendants’ trespass therefore threatens to cause irreparable harm to Oracle. Defendants continue to unjustly retain these benefits at the 37 COMPLAINT . and the Software and Support Materials housed for licensed access through Customer Connection. damage to the functionality of Oracle’s computer system and data. and conversion of the Software and Support Materials. As a result. Defendants will continue to commit such acts and other competitors will be encouraged to sweep Oracle’s website. including. Eighth Claim for Relief Unjust Enrichment/Restitution (By Oracle Against All Defendants) 142. Oracle is entitled to recover any and all damages it sustained as a result of such trespass. 141. the integrity and functionality of Oracle’s computer system and data. 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. Defendants caused Oracle’s property to greatly diminish in value and deprived Oracle of the intended use of its computer systems. but not limited to. including Defendants’ interference with Oracle’s business relationships and other unfair business practices. damage to Oracle’s rights to dominion and control over its property.
The wrongful conduct committed pursuant to the conspiracy was a substantial factor in causing this harm. and commission of. Oracle incorporates by reference each of the allegations in the preceding paragraphs of this Complaint as though fully set forth here. and in furtherance of. Defendants willfully. Defendants did the acts alleged pursuant to. computer fraud concerning. 144. As a direct and proximate result of the acts in furtherance of the conspiracy. and conversion of the Software and Support Materials. Defendants’ intentional agreement to commit. Oracle has suffered injury. and harm. and in conscious disregard of Oracle’s rights. these wrongful acts was willful. ratifying. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. including. 38 COMPLAINT . 146. and knowingly agreed and conspired with each other to engage in the alleged wrongful conduct. Oracle is accordingly entitled to full restitution of all amounts in which Defendants have been unjustly enriched at Oracle’s expense. damage. oppressive. loss of profits from sales to current and potential customers of Oracle support services and licenses for Oracle’s software programs. as well as Defendants’ trespass on. Ninth Claim for Relief Civil Conspiracy (By Oracle Against All Defendants) 145. 148. that agreement and/or furthered the conspiracy by cooperating. 149. loss. but not limited to. 147. encouraging. intentionally.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. malicious. It would be unjust for Defendants to retain any value they obtained as a result of their wrongful conduct. including Defendants’ interference with Oracle’s business relationships and other unfair business practices. or adopting the acts of the others.
and aided and abetted such wrongful conduct. Defendants’ aiding and abetting of these wrongful acts was willful. 154. oppressive. 150. including interference with Oracle’s business relationships and other unfair business practices. The wrongful conduct aided and abetted by the Defendants was a substantial factor in causing this harm. and harm. Oracle has suffered injury. but not limited to. 151. and conversion of the Software and Support Materials. 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. Defendants had full knowledge or should have reasonably known of the true nature of the wrongful conduct of each other Defendant. including. malicious. by providing substantial assistance and/or encouraging the others to act. loss of profits from sales to current and potential customers of Oracle support services and licenses to Oracle software programs. loss. As fully described above. and in conscious disregard of Oracle’s rights. 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. 153. computer fraud concerning.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 155. As a direct and proximate result of the aiding and abetting of these acts. separately considered. 152. was wrongful in and of itself. damage. and Oracle is therefore entitled to an award of punitive damages to punish their wrongful conduct and deter future wrongful conduct. as well as Defendants’ trespass on. 39 COMPLAINT . Defendants also aided and abetted the described wrongful conduct of the other Defendants by giving substantial assistance and/or encouragement that.
to a full accounting. (b) Improperly. or using any property obtained from Oracle’s website. at Oracle’s expense. including without limitation the Customer Connection website. (c) Willfully converting Oracle’s confidential. Since at least September 2006. agents. (d) Fraudulently accessing and intentionally trespassing on Oracle’s password-protected Customer Connection website. distributing. proprietary. without authorization or consent. proprietary. Oracle is entitled. (2) selling. For a preliminary and permanent injunction restraining Defendants. including data. 158. including without limitation.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. Oracle respectfully prays for the following: A. Oracle’s confidential. 157. and unlawfully taking commercial advantage of Oracle’s investment in its Software and Support Materials. in furtherance of their unlawful and deceptive scheme as described above. 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. Prayer For Relief WHEREFORE. and valuable 40 COMPLAINT . and that some or all of such money is rightfully due to Oracle. for the purpose of sabotaging Oracle’s ability to do business and compete in the market. and those in active concert or participation with any of them from: (1) accessing any Oracle restricted-access or customer website. employees. internal documents. Defendants have received money as a result of their misconduct. their officers. but not limited to: (a) Intentionally and/or negligently interfering with Oracle’s prospective economic advantage with its existing and potential customers. servants. Defendants have obtained business through the use of unlawful conduct including. and copyrighted Software and Support Materials. and copyrighted Software and Support Materials. willfully. and attorneys. and. without Oracle’s authorization. therefore.
including data. J. 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. (4) otherwise engaging in acts of unfair competition and interference with Oracle’s business relationships. For an accounting. intentional interference with Oracle’s prospective economic advantage. and copyrighted Software and Support Materials. F. Oracle’s confidential. including. but not limited to Oracle’s confidential. patches. and other computer code. That the Court order Defendants to pay Oracle punitive damages in a sum to be determined at trial. H. 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. G. including. For an Order awarding Oracle such other and further relief as the . as set forth in this Complaint. patches. that Defendants took from Oracle. setting forth in detail the manner and form in which Defendants have complied with the injunction. B. For prejudgment interest. For an Order directing Defendants to return Oracle’s property. fixes. on the basis of their willful and deliberate unauthorized computer access. and valuable updates. K. and other computer code. For an Order awarding Oracle its attorneys’ fees and costs. internal documents. internal documents. I. and. and other computer code. (3) removing. under oath. D. fixes. Court deems just and proper. patches. proprietary. proprietary. and copyrighted Software and Support Materials.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 updates. downloading or copying property from Oracle’s website without Oracle’s authorization. C. fixes. including data. aiding and abetting and conspiracy. and valuable updates. without limitation.