xREDACTEDxxAmendedxCrossxComplaint

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LATHAM & WATKINS LLP Daniel M. Wall, SBN 102580 Alfred C. Pfeiffer, Jr., SBN 120965 Sadik Huseny, SBN 224659 505 Montgomery Street, Suite 2000 San Francisco, California 94111 Telephone: 415.391.0600 Facsimile: 415.395.8095 ORACLE CORPORATION Dorian Daley, SBN 129049 Deborah K. Miller, SBN 95527 500 Oracle Parkway M/S 5op7 Redwood City, CA 94070 Telephone: 650.506.5200 Facsimile: 650.506.7114 Attorneys for Defendant and Cross-Complainant Oracle Corporation
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA HEWLETT-PACKARD COMPANY,
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Plaintiff,
CASE NO. 1-11-CV-203163 Action Filed: Trial Date: June 15, 2011 April 2, 2012
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v.
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ORACLE CORPORATION,
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Defendant.
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ATTORNEYS AT LAW SAN FRANCISCO
ORACLE CORPORATION, Cross-Complainant, v. HEWLETT-PACKARD COMPANY, Cross-Defendant.
ORACLE CORPORATIONS AMENDED CROSS-COMPLAINT AGAINST HEWLETTPACKARD COMPANY FOR (1) VIOLATION OF THE LANHAM ACT, 15 U.S.C. 1501 ET SEQ.; (2) VIOLATION OF CAL. BUS. & PROF. CODE 17500 ET SEQ.; (3) VIOLATION OF CAL. BUS. & PROF. CODE 17200 ET SEQ.; (4) DEFAMATION LIBEL; (5) INTENTIONAL INTERFERENCE WITH CONTRACTUAL RELATIONS; (6) INTENTIONAL INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE; AND (7) FRAUD / EQUITABLE RESCISSION
Assigned for all Purposes to The Honorable James P. Kleinberg DEMAND FOR JURY TRIAL
PUBLIC REDACTED VERSION
ORACLE CORPORATIONS AMENDED CROSS-COMPLAINT AGAINST HEWLETT-PACKARD COMPANY CASE NO. 1-11-CV-203163
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Cross-Complainant Oracle Corporation (Oracle) alleges against CrossDefendant Hewlett-Packard Company (HP) as follows: PARTIES 1. Cross-Complainant Oracle is, and at all times material to this action was, a
Delaware corporation with its principal place of business and headquarters in Redwood City, California. 2. Cross-Defendant HP is, and at all times material to this action was, a
Delaware corporation, with its principal place of business and headquarters in Palo Alto, California. VENUE 3. Venue is proper in Santa Clara County pursuant to California Code of
Civil Procedure section 395.5 because HPs principal place of business is situated in this County, the contract at issue was made and was to be performed in this County, and the conduct giving rise to HPs liability arose in this County. NATURE OF THE ACTION 4. Oracle brings this amended cross-complaint seeking injunctive relief and
damages for unlawful injuries caused by HP. As set forth below, HP engaged in a multi-year campaign of secrecy and deception designed to conceal the truth about Intel Corporations commitment to the Itanium microprocessor in order to extend its Itanium server business at Oracles expense and reap large profits from its own unsuspecting installed base of Itanium users. HP made false and misleading statements to Oracle, the public, analysts, the press, customers, potential customers and investors, all with the intent to mislead these audiences about the vitality and future prospects of Itanium and material amounts of HPs associated revenue stream. When Oracle announced the truth about Itaniumthat Intels strategic focus was not on Itanium but on its competing Xeon line of microprocessors, and that Itanium was nearing its end of lifeHP reacted with a ferocious effort to foment false customer outrage and to vilify and defame Oracle, all to buy itself more time to milk its customer base and falsely blame Oracle for Itaniums demise. HPs false and misleading public statements violate section 43 (a) of the 1
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Lanham Act, 15 U.S.C. 1125(a), and California statutory and common law, in that they constitute false advertising, false statements of association, unfair competition and defamation. 5. Oracle also brings this cross-complaint because HP fraudulently induced
Oracle to enter into an agreementthe Hurd Agreement1in the context of a lawsuit HP filed against its former CEO, by concealing and misrepresenting the truth about Itanium, and by concealing material information about HPs imminent intent to hire Oracle antagonists to highlevel HP executive positions. HPs actions constitute extrinsic fraud. Oracle hereby seeks rescission of the Hurd Agreement. FACTUAL ALLEGATIONS CONCERNING HPS MISREPRESENTATIONS AND DECEPTIONS CONCERNING INTELS COMMITMENT TO ITANIUM A. HPs Campaign of Deceit Regarding the Status and Prospects of Itanium 6. This cross-complaint arises out of a long-term effort by HP to prop up its
Itanium-based computer server businessservers ironically sold under the name Integrity. HP has deliberately misrepresented the current status and limited future roadmap for Intels Itanium microprocessors, the chips that power Integrity servers. 7. Integrity is one of HPs products marketed for customers running mission
critical applications. A broad range of computer servers handle mission critical loads, but HP has promoted the notion that Integrity and some of its higher-end Xeon servers are business critical servers, which is also the name HP has given to its business unit (BCS) responsible for Itanium. Any customer looking to support the software applications handling the enterprises heaviest and/or most important workloads will be very sensitive to the future prospects for the technologies embedded in the servers it chooses. In general, such customers will not buy a server whose underlying technologies are nearing their end of life, meaning the point of time when the technologies are being phased out in favor of newer and better alternatives. Technology companies often publish product roadmaps to indentify planned new innovations and time frames for those innovations. Any indication that the technologys sponsor is not
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Ex. A (Hurd Agreement (Sept. 20, 2010)).
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releasing significant new innovations or is not devoted to a long, open-ended commitment can devastate new sales of existing products and speed migration of existing customers to new platforms. 2 Importantly, customers want their major technology providers to be independently committed to the platform. In the case of Itanium, that means that customers want assurance that Intel believes in the platform on its own merits and is fully and enthusiastically committed to it. 8. By early if not earlier, HP learned that Intel wanted to end Itanium
development and production. The chip had always been a disappointment (in absolute terms and relative to the markets aspirations for it), and by 2008 Intel was achieving with its Xeon x86based chips the performance required to support significant or critical demands at a far lower cost for customers and a lower cost of production for Intel. In other words, Xeon became Intels desired solution for so-called business critical systems, and a result, Intel wanted out of Itanium. HP internal documents note numerous reasons for Intels decision:
. But Intels decision to abandon Itanium threatened HP because HPs proprietary HP-UX operating system and Integrity servers only ran on Itanium chips. Without Itanium, HP-UX and Integrity were obsolete. HP faced two profoundly negative consequences. 9. First, HP-UX was (and is) HPs only proprietary operating system for its
servers, and HP uses it only for its Itanium-based servers. Today and into the future, mission critical computing is about open standards, non-proprietary operating systems like Linux, and many options for consumers. HP, however, wanted to keep customers on its proprietary HP-UX operating system because it is an effective customer control device. The significant installed base of HP-UX customers are securely locked-in to HP, with support contracts from HP which generate buying HP-UX HP profit every year. Without
Itanium, and because HP decided not to develop HP-UX for its Xeon-based servers, HP knew its
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Importantly, vendors routinely continue to support older versions of products well after their end of life and typically for many years afterwards. End of life refers to the end of the sales side of the business. That is the case here as well.
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support revenues from HP-UX would collapse in a few years. Customers would most likely migrate to Xeon systems and non-proprietary operating systems like Linux, and HP would get far less support revenues because, among other things, (1) Itanium systems are more expensive than x86 systems, (2) there are fewer engineers with Itanium experience than x86 systems, thus increasing the labor costs for Itanium support, and (3) the attach rate for support contracts (i.e., incidence at which customers will actually purchase support for the hardware) is much higher on HP-UX on Itanium than on non-proprietary operating systems such as Windows and Linux on x86. So, even if HP found some way to sell alternative servers to these customers, there was no way for HP to replace the profitable HP-UX support revenues. 10. Second, HP had made HP-UX on Itanium its flagship, preferred offering
for its so-called mission critical computing. HP has long been socializing the marketplace that Itanium servers running HP-UX were the best way to handle customers large or complex applications and workloads. As a result of those efforts, Integrity servers were clearly perceived as the best HP products for such customers. Internally, HP realized that on account of its own efforts to promote Integrity, it had essentially gone all in on the product for these customers, such that without Integrity it would not be viewed as competitive in this space any longer. At the very least it would be far less competitive. Intels desire to stop Itanium production thus would mean that HP was out of the business critical server space it had defined and claimed as its own. Internal documents voice the fear that this space would essentially In other words, HP had backed itself into a corner, overselling its Itanium solutions and under-selling its Xeon solutions to that point that Intels decision to cease Itanium production was life-threatening. As HPs Senior Vice President and General Manager in charge of its Business Critical Systems unit put it, HP was 11. HP therefore made a bold play: see if it could entice Intel to continue to to continue producing
manufacture Itanium chips by paying it
Itanium chips for a period of timebut secretlyso that HP could also pass off to the world that nothing had changed, the Itanium processor was still alive and well, and Intels commitment to it had not wavered. In HP and Intel did enter into a brand-new agreementthe 4
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Itanium Collaboration Agreement whereby Intel, Itanium
would prolong
Under that agreement
The stunning deal was a pure pay-off to induce Intel to keep churning out processors that it really wanted to kill. According to its plan, HP did not reveal this material agreement to the marketplace, or even to its own salesforce. 12. There is, of course, nothing wrong with entering into a contract with a
supplier to ensure the supply of a key input. Had HP simply entered into the Intel deal and revealed it perhaps taken credit for itOracle would have nothing to complain about. Indeed, the public, HPs actual and prospective customers, HPs salesforce and others had long-known that Intel and HP had initially entered into an agreement in the 1990s to jointly develop Itanium, before Intel assumed control for the development and manufacture of the chip. But this new agreement was something quite different: HP could not have the world, its customers or its investors know that Intel desperately wanted out of Itanium, and that it would only, reluctantly, keep making the chip if Secrecy and the appearance that Intel
was committed to Itanium on its own merits were thus integral parts of HPs strategy.
And this Collaboration Agreement was, in fact, never revealeduntil Oracle uncovered it in this litigation. HP worked hard to keep the agreement buried, even from its own people. The question screams out: Why? 13. The primary reason is that HP understood that a deal to extend the life of
Itanium artificially and through extraordinary life-saving measures would clearly signal to the 5
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marketplace that the end of Itanium was impending. That Intel had to be paid to put Itanium on life support would surely be material information for customers making long-term, multi-million dollar purchase decisions. As HPs internal documents show, customers are prone to abandon a server technology as soon as announcing an agreement whereby HP pays Intel HP was concerned that but only gets a
would begin to affect purchasing decisions immediately, because it would shatter the all important perception of vitality and longevity for that particular server line. As an HP employee puts it:
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HP therefore had a lot to gain by keeping the Intel agreement secret and
committing Intel to adopting a business as usual posture as it announced its Itanium roadmap. And so HP decided to deceive customers and the marketand even its own sales forceby letting everyone believe that Intel had extended the Itanium roadmap on its own initiative and for its own reasons. Since the agreement was signed in , HP has on innumerable
occasions touted the long Itanium roadmap and Intels commitment to the chip as a reason for consumers to keep purchasing and using Itanium systemswithout once mentioning Intels desire to stop producing Itanium, the life-support agreement with Intel or the date certain when Itanium production would end. 15. own words, HP also did not want to reveal that much of the Itanium roadmap is, in its . The secret agreement HP has with
Intel does not obligate or incentivize Intel to develop great Itanium chipswith the performance gains one would expect from one generation to the next. Its purpose, again in HPs own words, is simply to The agreement thus
. The agreement clearly reflects an understanding between HP and Intel that for 6
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17. Instead,
None of this has been revealed to consumers or to the market, who instead have heard HP tout Intels commitment to long-term roadmaps and competitive Itanium chips. 16.
. HP therefore entertainedand abandonednumerous alternative plans to stave off the inevitable. One such plan is outlined belowwith 2012 representing, in HPs words, the date of
HP extended the Itanium Collaboration Agreement
and the fraud on consumers and Oracle. It did so when it decided, contrary to its original plan, not to continue the effort to
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When this became clear in early 2010, HPwith no real answer to its dilemma elected to push out its problem yet again. It decided to seek from Intel another undisclosed, extended Itanium commitment and continue the illusion of a long, Intel-initiated Itanium roadmap. 18. HP amended the Itanium Collaboration Agreement with Intel
Rather, in a clever deception,
The obvious and intended purpose of this is to further the illusion of a longer roadmapand again, extend the end of life visibility date that was so important to customers. In HPs words,
HP did not reveal any of this to the marketplace. 19. The new agreement also clearly allows Intel to
A key part of this is that
The typical reason this is doneand the reason hereis that it is cheaper, here for Intel, to
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HP, however, has not told the market that any Itanium chip after will be , because it understands that consumers would react accordingly. In fact, if it became clear that the purpose of the extended roadmap was a customer making an IT decision today would not wait they would simply move today, as would many of HPs current customers.
The market still does not know about it. 20. Numerous HP documents show that Sun and later Oracle were intended
victims of this deception. While the strategy was first and foremost about
. For example, an HP document entitled
Other documents show HPs use of
HP. B. HP Made False and Misleading Statements to Analysts, the Press, Its Customers and Potential Customers, and Investors For the Purpose of Preserving Its Profits 21. At all times relevant to this cross-complaint, the following was true: (i)
Intel wanted to stop developing and manufacturing the Itanium microprocessor; (ii) Intel only continued to manufacture the Itanium microprocessor because HP paid Intel to do so; (iii) the new versions of Itanium that Intel agreed to release were not
; and (iv)
HP revealed none of this. Instead, beginning in 9

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and increasing in frequency and desperation to the present date, HP has represented to the public and its customers that Itanium had a long and vital life, and that Intel was independently committed to developing technologically superior products under the Itanium line. These representations were false and misleading and designed to conceal from the public the true status of the Itanium microprocessor and Intels support for it. HPs false and misleading statements have caused significant economic harm to Oracle. Oracle has lost customers and business opportunities, which would not have occurred but for HPs false and misleading statements. 22. There are numerous examples of false and misleading statements that HP
made to the public. The most pervasive misrepresentation was pointing customers and the public to Intel as an unbiased, objective and even definitive source of Itanium roadmap information. HP has regularly cited Intel and pointed customers and industry analysts to Intel as proof that Intel believes in Itanium and is independently committed to Intels Itanium roadmap. It has done so knowing that Intel is , the fixed
length of the agreement, its end date, the minimal performance requirements, or anything that would qualify Intels ostensible commitment to the Itanium roadmap. When Intel does its part, publishing familiar-looking and unqualified Itanium roadmaps, HP cites those roadmaps or Intel statements about them as proof of Intels commitment. It is an elaborate charade, meant to convince customers that they need not believe a self-interested party like HP but can trust an ostensibly unbiased party like Intel. 23. following: On April 27, 2010, Rod Curry, Director of Business Critical Systems (BCS) for HP United Kingdom and Ireland stated that the Itanium roadmap has never been clearer and that Intels commitment is as strong as it ever has been. On July 24, 2008, HP China employee Chen Wusheng stated that Intel is a loyal partner for the development of Itanium system and that HP is very confident about the future development of Itanium system on a basis of its high credibility, capability and flexibility. 10 Typical of the HP statements adopting Intels Itanium roadmaps are the
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On June 15, 2010, HP employee Jacob van-Ewyk stated: The recently announced HP Integrity servers have a long life ahead of them. Intel has already disclosed that the new Itanium 9300 processor will be followed up by Poulson and Kittson . . . . This is the longest published roadmap in the UNIX business - taking the roadmap out until around 2017. On November 11, 2010, Mr. van-Ewyk stated: When I visit potential HP Integrity customers, I often get questions around the Itanium processor, and the related roadmap. In fact, many non-HP customers seem to have heard the FUD from our competitors, and are surprised that Itanium isnt dead. . . . Intel has offered a public Itanium roadmap that includes the current Itanium 9300 processor series, a follow up processor called Poulson, and even a future Itanium processor called Kittson. Their public roadmap is available as a PDF and is one of the longer public roadmaps available for mission critical systems. On February 9, 2011, HP Vice President and Chief Technology Officer for Business Critical Systems Kirk Bresniker stated that HPs customers are excited by Intels Itanium roadmap, the longest public microprocessor roadmap in the industry coupled with the ability to add multiple generations of higher capacity blades on a slot by slot basis. To them this means they can count on adding even more capacity incrementally, extending the life of their infrastructure investments. On March 23, 2011, HP released a statement in which it falsely reiterated that [HP] will continue the development and innovation of Itanium-based Integrity server platforms with its HP-UX operating system using a roadmap that extends more than 10 years.3 On March 23, 2011, HP employee Cynthia Dreher stated: Just last month . . . Intel unveiled technical details about the next Itanium processor, code named Poulson, with a long and vital roadmap extending beyond the next 10 years to the Kittson processor. On March 30, 2011, in a release entitled FAQs from HP on the
HP Press Release, HP Supports Customers Despite Oracles Anti-Customer Actions, Mar. 23, 2011 available at http://www.hp.com/hpinfo/newsroom/press/2011/110323c.html.
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Oracle Itanium Announcement, HP employee Kristie Popp falsely stated: HP, along with key partner Intel, is committed to at least 10 years of development and innovation on its HP-UX operating system and Itanium-based Integrity servers.4 On April 5, 2011, HP Vice President of Converged Infrastructure Strategy Doug Oathout stated: In this time of uncertainty, HP has your best interests at heart . . . . [HP will] continue the development and innovation of the Itanium-based integrity server . . . using a roadmap extending out beyond the next 10 years. . . . The result: no upheaval in your current or future plans.5
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These and other similar statements were false and misleading because HP
knew at the time they were made that Intel would already be done with Itanium but for the secret payments from HP and would jettison Itanium as soon as its obligations under the agreements came to an end. These statements were also false and misleading because at no time did the Itanium roadmap extend ten years or beyond. In fact, these public statements were part of a concerted plan designed to mislead the public and conceal the true state of Itanium. 25. These and other similar statements were also false and misleading because and were clearly
HP actively concealed the following material information relating to Itanium: from to the present, Intel was only making Itanium chips because HP was paying Intel to do so; the so-called
the
Itanium chips were to be and
Kristie Popp, FAQs from HP on the Oracle Itanium Announcement, HPs Mission Critical Computing Blog, Mar. 30, 2011, available at http://h30507.www3.hp.com/t5/Mission-Critical-ComputingBlog/FAQs-from-HP-on-the-Oracle-Itanium-Announcement/ba-p/89977. Doug Oathout, Is Your Vendor Confusing Your Wants and Needs for Their Bottomline?, Apr. 5, 2011 available at http://h30507.www3.hp.com/t5/Mission-Critical-Computing-Blog/Is-your-vendorconfusing-your-wants-and-needs-for-their/ba-p/90221.
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HP would
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HPs internal statements from the same time period fully demonstrate the
false nature of its public statements regarding Itaniums vitality. The contrast between what HP was discussing internallythe truthand what it was telling the market and its actual and prospective customersblatant liescould not be more stark. Those internal statements include the following:
27. HPs numerous false and misleading statements regarding the longevity of Itanium have damaged Oracle, in the form of lost sales and business opportunities. C. HP Unlawfully Defamed Oracle Following Oracles March 22, 2011 Announcement 28. On March 22, 2011, Oracle announced that it would halt future
development of its software products for the Intel Itanium microprocessormost specifically that it would not develop for the Itanium platform the new version of its database, 12g, which does not even exist yet. Oracle made that decision with no knowledge of the secret HP-Intel deals, but rather on the basis of the general market signals of the Itanium processors decline, the remarkable market and technical performance of the Xeon processor and conversations Oracle 13
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executives had with Intel executives confirming that Itanium was nearing its end of life and Intel was strategically focused on its x86 line. 29. HP knew that what Oracle said about Itanium was absolutely true. its just
Itanium was already at end of life, with
that the market realization or public visibility of that end of life was not yet known because of HPs scheme. HPs internal documents also reveal, for instance, that after Oracles announcement, Intel specifically refused to issue the press release that HP demanded . An HP executive wrote to an Intel executive:
Despite HPs emphatic demand, Intel learned that Intel told reported
Moreover, HP also . As an HP employee
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Incredibly, despite these direct exchanges from Intel and its own
employees, and direct knowledge that Oracles announcement was true, HP publicly reacted with still more lies, vilifying Oracle in the press, with customers and ultimately in this litigation. HP claimed that Intel had said no such thing, that Intel was committed to Itaniums future and there was no end of life for Itanium, that Oracle had made it all up to damage HP, that Oracle was not 14
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supporting current Itanium customers and perhaps most absurdly that Oracle had contractually committed to port its future software products to HP-UX and Itanium. 31. HPs documents prove those were all outrageous and deliberate lies.
There is explicit recognition in HPs internal documents that Oracle was not contractually committed to develop for Itanium,
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HPs internal documents also admit that Oracles support policies in fact
were broad and generous, that current Itanium customers would be supported until 2018 and that many of them would not need to upgrade to Oracles later software products (particularly the Oracle database) for a great many years. HP nonetheless chose to defame Oracle at every turn with allegations that Oracle was refusing to support existing Itanium system users. 33. HPs defamatory, false and misleading statements regarding Oracle
include, without limitation, the following: On March 23, 2011, the HP Newsroom released a statement in which Dave Donatelli, HPs Executive Vice President and General Manager of Enterprise Servers, Storage and Networking, accused Oracle of 15
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engaging in a pattern of anti-customer behavior as they move to shore up their failing Sun server business.6 Mr. Donatelli falsely accused Oracle of putting enterprises and governments at risk while costing them hundreds of million of dollars in lost productivity in a shameless gambit to limit fair competition.7 Also on March 23, 2011, HP employee Cynthia Dreher falsely alleged that Oracle was employing bully[ing] tactics and forced migrations[,] and disseminating disinformation regarding the future of Itanium.8 On or around March 24, 2011, HP disseminated to its Itanium customers and posted to its website a template Oracle Customer letter that demands Oracle immediately reverse its decision and publicly proclaim long-term support for Oracle software on the Itanium platform.9 This letter falsely suggests that Oracle discontinued or otherwise interrupted its support for Oracles Itaniumbased software. On March 28, 2011, HPs then-CEO Leo Apotheker falsely stated at HPs Americas Partner Conference 2011 that Oracles Itanium decision was anticompetitive[,] self-interested and to the endangerment of customers.10 On March 29, 2011, Michael St. Jean, HPs Solutions Business Manager, Enterprise Servers, Storage & Networking Marketing,
See Ethan Bauley, HP comment on Oracle support for Itanium Processors, Data Central, the official HP corporate blog, Mar. 23, 2011, available at http://h30507.www3.hp.com/t5/Data-Central/HPcomment-on-Oracle-support-for-Itanium-Processors/ba-p/89675. Id. Cynthia Dreher, Customers Rest Assured: HP & Intel are Committed to Long Future for Itanium, HPs Mission Critical Computing Blog, Mar. 23, 2011, available at http://h30507.www3.hp.com/t5/Mission-Critical-Computing-Blog/Customers-Rest-Assured-HP-ampIntel-are-Committed-to-Long-Future/ba-p/89673. Available at https://h30406.www3.hp.com/campaigns/2011/events/OracleCustomerLetter/OracleCustomerletter.d oc. This HP URL opens a Microsoft Word document titled OracleCustomerletter.doc. Kevin McLaughlin and Steven Burke, HP CEO Apotheker Slams Oracle For Quitting Itanium, CRN News, Analysis, and Perspective for Vars and Technology Integrators, Mar. 28, 2011, available at http://www.crn.com/news/data-center/229400474/hp-ceo-apotheker-slams-oraclefor-quittingitanium.htm;jsessionid=MvsnQur0A4BO9hMjB6oNbA**.ecappj01.
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falsely stated: Many of Larry Ellisons announcements are meant to disrupt the market to Oracles gain. . . . [W]hat is Larrys strategy with the announcement of halting development for the Itanium chip? . . . [I]t seems obvious that Larry is once again trying to disrupt the market.11 On March 30, 2011, HP employee Kristie Popp falsely stated that during the past 12 months, Oracle has shown a pattern to limit customer choice, raise prices, and cut off partners. Clearly, Oracles actions have been in the best interest of Oracle and not that of customers.12 On April 1, 2011, Patrick Eitenbichler, HPs Marketing Strategist, Converged Infrastructure, falsely stated that Oracles Itanium decision was made without a single consideration for customers who have made significant investments in Oracle software and Itanium-based hardware.13 On April 16, 2011, HP employee Jacob Van-Ewyk falsely stated that Oracle[s] decision to stop development for Intel Itanium-based servers had left many joint customers without a solution . . . .14 On June 8, 2011, HP officials falsely accused Oracle of disregard[ing] its commitments, and . . . engag[ing] in conduct designed to deny choice and harm competition . . . .15
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Jacob van-Ewyk, HP Integrity and Oracle Support, HPs Mission Critical Computing Blog, Mar. 29, 2011, available at http://h30507.www3.hp.com/t5/Mission-Critical-Computing-Blog/HPIntegrityand-Oracle-Support/ba-p/89943 (see comment by HP employee Michael St. Jean in Comments section). Kristie Popp, FAQs from HP on the Oracle Itanium Announcement, HPs Mission Critical Computing Blog, Mar. 30, 2011, available at http://h30507.www3.hp.com/t5/Mission-Critical-ComputingBlog/FAQs-from-HP-on-the-Oracle-Itanium-Announcement/ba-p/89977. Kristie Popp, Oracles server worldwide shipment figures fell by a startling 40 percent, HPs Enterprise Business Blogs, Apr. 1, 2011, available at http://h30507.www3.hp.com/t5/ConvergedInfrastructure/Oracle-s-server-worldwide-shipment-figures-fell-by-a-startling/ba-p/90077 (quoting Patrick Eitenbichler). Jacob van-Ewyk, The Trend to Cloud, HPs Mission Critical Computing Blog, Apr. 16, 2011, available at http://h30507.www3.hp.com/t5/Mission-Critical-Computing-Blog/The-Trend-toCloud/ba-p/90935. Kevin McLaughlin, HP Letter To Oracle Hints Of Legal Action Over Itanium, CRN News, Analysis, and Perspective for Vars and Technology Integrators, June 8, 2011, available at http://www.crn. com/news/data-center/230500088/hp-letter-to-oracle-hints-of-legal-action-overitanium.htm.
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34.
HPs efforts to
were not its only
defamatory campaign against Oracle. HP also campaigned to initiate investigations by as many foreign competition authorities as it could bait with the same deceptions. 35. HPs representations are not statements of opinion or within any
competitive privilege. Among other things, they falsely assert as objective truths that Oracle is the cause of Itaniums demise, that Oracle is arbitrarily causing harm to Itanium users, that Oracle is refusing to provide support for customers using Itanium-based products, that Oracle has lied about Itaniums future prospects and that Oracle has a history and pattern of anti-customer behavior. 36. One of HPs most brazen lies to the marketplace is that Oracle has refused
to provide ongoing software support and bug-fixes for current versions of Oracles software for Itanium servers. That is utterly false. In fact, Oracle is fully supporting the current (and many past) versions of its software on Itanium servers, by issuing bug-fixes per its standard policies. HP itself admits that most of HPs Itanium customers using Oracles database product are not even on the current version of the database, 11gR2and many are still on versions 9 and 10, with no immediate need to move to a more current version. HPs lies to the market about Oracles alleged failure to support current versions of its software on Itanium is in direct conflict with the message HP was urging its own representatives to give to customers. As HPs own Vice President of Business Critical Systems Marketing and Strategy wrote two months after Oracles announcement:
In other words, while publicly defaming Oracle with accusations of not supporting existing Itanium customers, HP secretly reassured some that it wasnt true and that they would have Oracles support for many years to come. 18
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37.
HP continued its defamatory campaign by filing this lawsuit against
Oracle on June 15, 2011three months after Oracles Itanium announcement. The lawsuit falsely alleges, among other things, that the Hurd Agreement contractually obligates Oracle to maintain its license pricing and to continue developing new software for HPs Itanium platform indefinitely, and that Oracle breached the Hurd Agreement by ceasing to do so. The redacted complaint, designed to give the impression of a contract where none existed, was an escalation in the ongoing campaign to deflect attention from HPs years-long Itanium fraud and to pin the public blame for its unraveling squarely on Oracle. 38. HPs defamatory campaign is systematic, widespread and ongoing. It
does not consist of an isolated statement or two, but is a well-orchestrated effort to blame Oracle for Itaniums demise, beginning as early as March 23, 2011 and continuing to the present day. HP has a website dedicated to selling these lies, http://h18004.www1.hp.com/products/solutions/customers first.html, which has been active since at least April 2011. HP has also reached out directly to Oracles customers. Indeed, immediately following Oracles Itanium announcement, HP drafted and disseminated to its Itanium customers a template Oracle Customer letter that demands Oracle immediately reverse its decision and publicly proclaim long-term support for Oracle software on the Itanium platform thus falsely suggesting that Oracle discontinued or otherwise interrupted its support for Oracles Itanium-based software . Oracle began receiving identical or substantially similar copies of this letter from its Itanium customers (with each customers individual information substituted in where necessary) shortly after its announcement. HP also created and posted to its website several videos featuring joint HP-Oracle customers, which quoted the customers criticizing Oracles Itanium decision using language similar to HPs language in its own press releases and public statements. 39. HPs false statements have caused substantial customer confusion and
anger, and injury to Oracles reputation and existing and prospective customer relations. HPs actions have resulted in lost sales of Oracle/Sun servers and lost profits in an amount to be proven at trial. HPs defamatory attacks on Oracle have also caused injury to Oracle, among 19
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them: existing and prospective customers seeking compensation and guarantees from Oracle, threatening to withdraw or withdrawing their business from Oracle and/or vowing not to do business with Oracle in the future. Oracle has already expended and continues to expend substantial resources setting the story straight and assuaging its customers unfounded fears. HPs conduct has also created serious uncertainty in the marketplace, thereby injuring customers and competition. 40. Oracle now understands that its real offense was telling the truth about
Itaniumand thus unknowingly undermining HPs plan to lock in its customers to Itanium longer and keep milking support revenues, until it could develop x86 solutions and migration strategies on its own timetable. The truth also undermined the HP was secretly paying to Intel to create the illusion of a long Itanium roadmap essential to its scheme. All that money and the years of carefully managed secrecy meant nothing if Oracle was going to stop building new products for HP-UX. Certainly that is not Oracles problem, as it had no obligation to continue to do so, and even if HP had obtain such a commitment it would have been obtained by fraud and deception. In all events, nothing justifies HPs dishonest efforts to slander Oracle and double-down on its lies about Itaniums status and future. Itanium is past its natural end of life. Since it has been on HP-managed life support, and every appearance
of vitality and relevance has been orchestrated by HP, for the benefit of HP alone, and with utter disregard for the rights of consumers to make their own informed choices. HPs world-class campaign of deceptionand its final stage, where HP has attempted to vilify Oracle for telling the truthhas finally come to light. By this cross-complaint Oracle seeks appropriate redress for itself and the general public. ///
20
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FACTUAL ALLEGATIONS REGARDING CLAIMS FOR FRAUDULENTLY INDUCING ORACLE TO ENTER INTO THE HURD AGREEMENT 41. In addition to defrauding the market and inflicting harm on Oracles server
business, HP also fraudulently induced Oracle to enter into the very contract at the heart of its
4
lawsuit against Oraclethe Hurd Agreementunder which HP falsely alleges that Oracle
5
promised to forever port its software to HPs Itanium platform.
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A.
The Oracle and HP Relationship, and Oracles Acquisition of Sun 42. The Hurd Agreement arose in the context of what was once a
complementary, but then became an increasingly competitive, relationship between Oracle and HP. For many years, Oracle and HP had a relationship that followed naturally from the way their individual self-interests were aligned. Oracle was an enterprise software company, and did not sell computer hardware. HP was principally a hardware company, and insofar as its business touched Oracles (much of it does not), it sold computer servers that ran Oracle software. HP had very little in the way of an enterprise software business. Over time HP developed a substantial business providing various enterprise software services as well, but that was also complementary to Oracles offerings. With little turf to fight over and many mutual customers, a partnership in the colloquial sense evolved, and Oracle and HP worked together voluntarily in many ways. Formal contractual obligations were a part of their relationship where necessary, and there are numerous binding contracts between Oracle and HP. The parties signed formal contracts whenever they intended to be legally bound, spelling out the exact obligations to be incurred, monetary compensation, specific duration, and the like. But they also often worked towards commonly-held goals without any contractual commitment, simply because the pursuit of their respective self-interests was sufficient to put them on the same path. Neither company ever agreed to act contrary to its own individual economic interest, however. 43. The companies relationship changed as their previously aligned interests
began to diverge. As noted, an important moment in this evolution was Oracles acquisition of Sun Microsystems, which positioned Oracle as one of HPs three principal competitors in the market for computer servers. HP understood this was a transformative event, and wasted no time 21
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transitioning to a competitive relationship with Oracle. In July 2009, when Suns shareholders voted to approve the Oracle merger, HP launched a program called SunSet that directly targeted Suns server customers and attempted to induce them to switch to HP servers, alleging, among other things, that Oracle was not a stable and proven hardware vendor. HPs accompanying press release said that it was cheaper to run Oracles database software on HP systems rather than Sun SPARC systems, which HP knew was solely the result of a pricing advantage that HP also knew would disappear as soon as Oracle owned Sun. HP also began aggressively recruiting and hiring Sun employees, capitalizing on Suns challenging financial situation and the disruption caused by the extended regulatory review of the transaction. Since the Sun acquisition closed, Oracle and HP have routinely competed against each other in the sale of computer server systems, and in that setting have appropriately not acted as partners in any sense of the term. Oracle, of course, had no idea that, far above and beyond any lawful competition, HP had furthered and doubled down on its deception regarding Itanium, with a specific goal of crushing Sun, driving Oracle from the server market, and even acquiring the Sun assets from Oracle when HPs plan succeeded. B. The Hurd Agreement 44. Any idea of an Oracle-HP partnership was damaged further as a result
of events in the summer of 2010. On August 6, 2010, HPs Board voted to oust its then-CEO, Mark Hurd. Mr. Hurd had been a very effective CEO at HP. HPs stock price doubled during his five-year tenure and under his leadership, HP became the worlds leading technology company by revenue. To put that in context, as of August 25, 2011 HPs stock had declined approximately 45 percent in just over a year since Mr. Hurd was ousted, and its shareholders had lost over $55 billion in market capitalization. Mr. Hurd was also highly respected by Oracles management. In August 2010, the HP Board forced Mr. Hurd out in the wake of baseless sexual harassment chargescharges that HP itself found to be baseless and that were withdrawn by Mr. Hurds accuser. Oracle was sharply critical of Mr. Hurds ouster, pointing out that it was not only harmful to HP and its shareholders, but to business partners like Oracle as well.
22
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17 16
45.
Oracle seized the opportunity to bring Mr. Hurd onto its management
team. On September 6, 2010, Oracle announced Mr. Hurd as its new Co-President. HP reacted to this news swiftly and aggressively: it sued Mr. Hurd the next day, alleging that he would inevitably violate his confidentiality obligations to HP and reveal HPs secret information to Oracle.16 HP sought immediate injunctive relief to protect its trade secrets and confidential information from Hurds threatened misappropriation and to require Hurd to honor his legally binding trade secret protection agreements with HP.17 But a lawsuit premised on the inevitable disclosure of ones trade secrets is baseless as a matter of California law, which rejects the notion that a person with knowledge of a former employers trade secrets will unavoidably disclose those secrets if the person later works for a competitor. HPs suit against Mr. Hurd had no objective basis in law or fact, and was obviously filed to harass Mr. Hurd, cause him to forfeit compensation he received at the time he left HP and delay his transition to Oracle. 46. Significantly, HPs lawsuit did not name Oracle as a defendant. In fact,
the day after filing the Hurd litigation, HPs then-acting CEO Cathie Lesjak expressly stated: I think the clarification I need to make is that we actually have not filed suit against Oracle. We have actually filed suit against Mark. . . . In terms of how its going to affect our relationship with Oracle . . . , ultimately, we will go back to being good partners . . . .18 HP also clarified to its employees that it had not filed any lawsuit against Oracle. In short, HP did not sue Oracle, never intended to sue Oracle, and made clear publicly that the only redress it sought was against Mr. Hurd. HP never intended to obtain any sort of commitment or obligation from Oracle as a
See Ex. B (Hewlett-Packard Company v. Hurd, Case No. 110CV181699 (Santa Clara County Superior Court) (Sept. 7, 2010)). Id. at 2. Ethan Bauley, Cathie Lesjak remarks at Citi Technology Conference: R&D, 3PAR, Mark Hurd, Oracle, and more, Data Central, the official HP corporate blog, Sept. 11, 2010, available at http://h30507.www3.hp.com/t5/Data-Central/Cathie-Lesjak-remarks-at-Citi-Technology-ConferenceR-amp-D-3PAR/ba-p/82391 (quoting an interview Ms. Lesjak gave at Citigroups Global Technology Conference on September 8, 2010) (emphasis added).
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18
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result of its lawsuit against Mr. Hurd, but simply intended to go back to being partners in the way the companies were before Oracle hired Mr. Hurd. 47. Despite its proclaimed desire to be good partners with Oracle, HPs
meritless litigation against Mr. Hurd further damaged its relationship with Oracle. As Oracles CEO Larry Ellison stated at the time: Oracle has long viewed HP as an important partner . . . . By filing this vindictive lawsuit . . . the HP board is acting with utter disregard for that partnership, our joint customers, and their own shareholders and employees. The HP Board is making it virtually impossible for Oracle and HP to continue to cooperate and work together in the IT marketplace.19 48. HP signaled its desire to settle the Hurd action one day after it was filed.
At the time, this appeared to be no more than an acknowledgement that HP had no chance of winning its case against Mr. Hurd. However, discovery obtained in this action has revealed that HP had an additional hidden and more strategic agenda. HP had been interviewing and was on the verge of hiring into its most senior leadership positions two peopleLo Apotheker and Ray Lanewhom HP knew would ensure the complete destruction of what was left of the Oracle-HP relationship. Moreover, HP desperately sought to conceal from Oracle (as well as the public) that it was paying Intel to extend Itaniums natural life, because HP knew
that that Oracle had no obligation to continue developing its software for Itanium under its existing partnership with HP and that such news would cause Oracle to stop developing its software for such a dying platform. Knowing that Messrs. Apotheker and Lane were toxic to any partnership with Oracle, and that the truth of Itaniums future would have killed any hope that Oracle would continue its Itanium efforts, HP tried to use the settlement of its lawsuit against Mr. Hurd as a last-chance vehicle to, among other things, induce Oracle to make hard contractual commitments both to continue developing software for the Itanium platform and to lock in favorable pricing on Oracles software for the Itanium platformi.e., contractual
19
27 28
Oracle Responds to HP Lawsuit, Oracle Press Release, Sept. 7, 2010, available at http://www.oracle.com/us/corporate/press/170699.
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commitments that bore no connection to the Hurd litigation or the relief HP sought (or ever could have obtained) from Mr. Hurd therein. Though Oracle plainly and unambiguously rejected the notion of making any such commitments, HP nonetheless asserts in this litigation that Oracle did. 49. Lo Apotheker had previously been the CEO of Oracles biggest
applications software competitor, SAP AG. As is now clear, Mr. Apotheker knew next to nothing about HPs core businesses. The only logical explanation for his hiring, now affirmed by HPs subsequent business announcements, was that HP wanted to change direction and become more of an enterprise software company like IBM or Oracle. HP knew that Mr. Apothekers software background would signal to Oracle that the old relationship based on complementary interests was over. But even more importantly, HP knew that Oracle held Mr. Apotheker personally responsible for the widespread theft of Oracles intellectual property by an SAP subsidiaryan admitted and long-lasting theft that resulted in a $1.3 billion jury verdict against SAP in November 2010. Through its subsidiary, SAPs strategy was to tell customers they were being overcharged by Oracle for customer support and then offer a purportedly identical service at half the price. That too-good-to-be-true deal was possible only because SAPs subsidiary was using stolen Oracle software to provide the service. In the course of that litigation SAP acknowledged its guilt, and the evidence established not only Mr. Apothekers involvement in SAPs illegal business practices but also his deep animus toward Oracle. For example, one email produced in the litigation had Mr. Apotheker writing: Im really pissedwe need to inflict some pain on oracle. In addition, Mr. Apotheker personally led an effort to shakedown Oracle by suggesting he could get the European Commission to end its extended antitrust review of the Oracle-Sun dealwhich was extended largely because SAP led an effort to get the deal blockedin exchange for settling the litigation about SAPs theft of Oracles intellectual property. Given Mr. Apothekers history, HP knew that Oracle would never accept Mr. Apotheker as any kind of partner, and that his mere presence as HPs CEO would poison the companies relationship. In fact, Mr. Apothekers first activity after becoming HPs CEO was evading an Oracle trial subpoena in the intellectual property litigation by staying more
25
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than 100 miles from the trial courthousewhich meant staying out of HPs Palo Alto headquarters for weeks. 50. As for Ray Lane, he was best known as Oracles former President and
Chief Operating Officer. Like Mr. Apotheker, his experience was in enterprise software, and his appointment would confirm the view that HP wanted to change direction and become more of an enterprise software company like Oracle. Furthermore, Mr. Lane too had a well-documented animosity towards Oracle CEO Larry Ellison, traced to his firing from Oracle in 2000. After leaving Oracle, Mr. Lane publicly blamed Mr. Ellison for his ouster and became a frequent Oracle critic. 51. Negotiation of the Hurd Agreement took place between September 8
and 20, 2010, at the same time HP was recruiting and just before HP announced the hiring of Messrs. Apotheker and Lane. HP correctly understood that if Oracle knew about HPs imminent plans to hire Messrs. Apotheker and Lane, Oracle would not make any business concessions whatsoever simply to resolve HPs objectively baseless employment lawsuit against Mr. Hurd. Furthermore, the very last thing Oracle would have agreed to do was sign a document reaffirming any kind of Oracle-HP partnership. HP thus intentionally and actively concealed this information from Oracle while negotiating the Hurd Agreement. The HP personnel and Board members involved with the Hurd litigationincluding HPs general counsel and corporate secretary, Michael J. Holston, who was directly involved in negotiating the Hurd Agreementunequivocally knew of HPs plans to hire Messrs. Apotheker and Lane while the Hurd negotiations occurred. Indeed, in an email Mr. Apotheker sent to Mr. Hurd on October 2, 2010, Mr. Apotheker expressly admitted that he was in intense discussions . . . with the HP board at the time Oracle announced Mr. Hurd as its new Co-Presidenti.e., on September 6, 2010, before HP filed its lawsuit against Mr. Hurd. Mr. Holston and others thus expressly knew while negotiating the Hurd Agreement that HP was simultaneously in the process of hiring, to its most senior positions, two long-time Oracle foes. 52. From the beginning of the Hurd negotiations, HP requested from Mr. Hurd
the very protections it sought in its complaintnamely, stringent restrictions on Mr. Hurds 26
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disclosure of HPs trade secrets and confidential information via restrictions on his ability to conduct various duties as an executive at Oracle, including those related to personnel and hiring matters, Oracles actual and prospective customers, and analysis of Oracles strategic business prospects. HP also used the occasion to seek independent and unrelated commitments from Oracle that unquestionably were outside the scope of HPs suit against Mr. Hurd or any relief HP sought or could have obtained in that suit. These terms included not only the language reaffirming the parties partnership, but also business restrictions that had no connection or relation to the Hurd litigation at all. HP indisputably could not have obtainedand did not even seek these concessions from Mr. Hurd, or through the courts on account of any claim in the Hurd litigation. It was an opportunistic ploy related only to the in terrorem value of suing Mr. Hurd, and was made for the purpose of calming the companies shared customers who were upset by the very public break signaled by HPs filing of the lawsuit and Mr. Ellisons public acknowledgment that the suit had damaged the relationship. Oracle agreed to these terms, in particular the reaffirmation provision, simply because Oracle believed they would mollify HPs paranoia without imposing any real obligations on Oracle. Oracle would not have agreed to any part of the Hurd Agreement, and especially not the terms that so clearly went beyond the scope of an employment lawsuit, had it known what was in the works. 53. Paragraph 1 of the final Hurd Agreement20which contains the
reaffirmation languagearose out of a conversation that Oracle Co-President Safra Catz had with HP Executive Vice President Ann Livermore on September 11, 2010, three days after HP first communicated its desire to settle its lawsuit against Mr. Hurd. Ms. Livermore asked Ms. Catz to publicly reaffirm the historical Oracle-HP partnership, which Ms. Catz understood to mean that Oracle and HP would make a few public statements to the effect that the companies were moving on from the rancor of the Hurd controversy and would continue to support mutual customersin other words, it would be business as usual. There was neither a proposal from
20
Ex. A (Hurd Agreement (Sept. 20, 2010)).
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Ms. Livermore nor any agreement by Ms. Catz for any new, binding contractual commitments beyond burying the hatchet publicly, least of all any suggestion that Oracle would give up its historical discretion to establish its own software pricing, development plans or priorities. 54. On September 12, 2010, HP counsel sent to Oracle a term sheet that
purported to capture what Ms. Catz and Ms. Livermore discussed. HP proposed the following: Reaffirmation of the Oracle/HP Partnership. The parties will re-affirm their commitment to their longstanding strategic partnership and their mutual desire to continue to support their joint customers. This re-affirmation to include a commitment from Oracle to continue to offer its product suite on HP Platforms on terms that are as good as or better than any other platform, and to co-market and cosell with HP such that the products available on HP Platforms are promoted or sold on par with or better than any other platform Oracle supports (other than Exadata). The detailed operative terms (including duration of the contractual commitment) to be resolved in the drafting of the actual written agreement. 55. Oracles General Counsel, Dorian Daley, responded by email the same
day, rejecting this proposal and making it crystal clear that Oracle had no intention of entering into any new binding contractual commitments, and that reaffirming the relationship meant exactly thatthey would continue to work together as the companies have according to their respective views as to what was best for customers. Referring to that provision, Ms. Daley stated (emphasis added): This was intended to reaffirm and continue the existing relationship and not to put HP in a better position tha[n] it currently enjoys or result in the negotiation of a new contractual commitment. Ms. Catz and Ms. Livermore did not discuss anything more tha[n] an agreement to continue to work together as the companies have with Oracle porting products to HPs platform and HP supporting the ported products and the parties engaging in joint marketing opportunities for the mutual benefit of customers. They did not discuss, and Oracle will not agree, to a most favored nations clause. Given their market positions, such an agreement might even be considered suspect by regulatory authorities. Negotiation of detailed operative terms is therefore not necessary. 28
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56.
In the same email, Ms. Daley attached a draft agreement which contained
the following articulation of Paragraph 1: Reaffirmation of the Oracle-HP Partnership. Oracle and HP reaffirm their commitment to their longstanding strategic relationship and their mutual desire to continue to support their mutual customers. Oracle will continue to offer its product suite on HP platforms and HP will continue to support Oracle products (including Oracle Enterprise Linux and Oracle VM) on its hardware in a manner consistent with that partnership. 57. In the context of Ms. Daleys cover email, that language obviously was
not meant to put HP in a better position tha[n] it currently enjoy[ed]. Neither could it reasonably be construed as a new contractual commitment. 58. HP knew that pursuant to Ms. Daleys proposed language and email
explanation, Oracle was not locked in to any particular software development commitment. Among other things, Oracle hadduring the partnershipalways retained complete discretion to support whichever HP technologies it chose, and could change its practicesjust as HP couldin response to changed conditions. Furthermore, HP knew that formal software porting contracts, where they existed as part of the partnership, were carefully constrained and supported by substantial financial considerationthere was even an existing, detailed and carefully limited Itanium porting agreement. In short, HP knew that it obtained no specific business commitments or guarantees simply from Oracle continu[ing] to offer its product suite on HP platforms . . . in a manner consistent with the historical notion of partnership. 59. As a result, in its very next draft of the agreement, dated September 13,
2010, HP again proposed specific language setting forth explicit obligations, among them that Oracle would (i) continue software development for HPs Itanium platform (HP-UX), and (ii) maintain its software pricing. HPs new language for Paragraph 1 stated (with HPs proposed inserts in bold): Reaffirmation of the Oracle-HP Partnership. Oracle and HP reaffirm their commitment to their longstanding strategic relationship and their mutual desire to continue to support their mutual customers. Oracle will continue to offer its product suite on HP platforms and HP will 29
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60.
continue to support Oracle products (including Oracle Enterprise Linux and Oracle VM) on its hardware in a manner consistent with that partnership. Oracle will continue to support all ongoing versions of HP-UX with Oracles relevant database, middleware and application products with the availability, marketing and pricing in competitive terms that Oracle has provided HP for the past five years. Oracle will continue to provide access to the Java technology and tools such that HP can continue to support its operating systems (e.g., HP-UX, OpenVMS, Nonstop) in a manner similar to the way it does today. Oracle agrees to continue to provide Solaris for HPs x86 platforms in a manner similar to what it provides HP today. Oracle agrees to continue to purchase HP server hardware for internal use at a rate similar to what Oracle purchases today. Oracle again rejected this language unequivocally because, as both
Ms. Catz and Ms. Daley had said, Oracle was unwilling to give HP greater commitments than HP ever had in the past. Twice rejected, HP did not again seek to insert binding and specific contractual commitments into Paragraph 1. The final, executed version of Paragraph 1 is nearly identical to the version Oracle first drafted, adding only that the parties would reaffirm the idea of partnership as it existed prior to Oracles hiring of Hurd. That language confirmed that the only commitment Oracle was making was that Mr. Hurds hiring itself would not bring about a change in Oracles business practices. 61. HP now contends that Paragraph 1 of the Hurd Agreement obligates
Oracle to port to the Itanium platform each new version of Oracles software products because, [since] the time HP introduced its first Itanium servers in 2001, Oracle has always ported its database and other software to run on the Itanium platform.21 HP suggests it is irrelevant that the Itanium platform is dying and has no future; that, consistent with the partnership, Oracle has discontinued software development for other obsolete HP platforms; that HPs other partners have discontinued software development for Itanium as well; and that Oracle and HP had an express, carefully limited Itanium porting agreement that does not cover the commitments HP
21
Joint Case Management Conference Statement, Aug. 5, 2011, p. 5 (HP position statement).
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now seeks. Paragraph 1, according to HP, trumps all and creates a perpetual software development commitment by Oracle at no cost to HP. 62. Oracle emphatically denies that HP has any rights to continued software
development or guaranteed pricing under Paragraph 1 of the final Hurd Agreement, or that any such rights existed in the Oracle-HP partnership before the Hurd Agreement was signed. However, if any such rights are found to exist in the language of Paragraph 1, they would not exist but for HPs deliberate and active concealment of the following material facts: (1) that Intel wanted out of Itanium but had only been producing the chipand had only promised to do so for a finite additional period of timein return from HP;
and (2) that HP was seeking to impose a similar development commitment on Oraclebut at no cost to HP and with no time restrictionswhile planning to hire Messrs. Apotheker and Lane as HPs new management team. Oracle would not have signed on to any agreement with HP had it known this information, and certainly the last thing it would have ever agreed to do was reaffirm a partnership that on the HP side would be led by Messrs. Apotheker and Lane, or include any languageeven looseregarding the parties going back to a previous state of affairs. To the extent HP obtained the rights it claims in this suit, it did so by fraud. 63. Unaware of HPs secret Itanium campaign, and of its plans to hire
Messers. Apotheker and Lane, Oracle agreed to the terms of the Hurd Agreement, and the parties executed the document on September 20, 2010. Oracle and HP issued a joint press release that same day in which they reaffirmed their so-called partnership. 64. On September 30, 2010, just ten days later, HP announced that it had
appointed Mr. Apotheker as its new CEO and Mr. Lane as the non-executive chairman of its Board. The media aptly construed HPs actions as a direct assault on Oracle. The Wall Street Journal reported on Mr. Apothekers hiring by saying that he offered a characteristic that seems
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to be highly valued at H-P these daysa dislike of Oracle.22 An All Things Digital reporter referred to Mr. Lanes hiring as a jab at Oracle.23 FIRST CAUSE OF ACTION (Violation of the Lanham Act, 15 U.S.C. 1501 et seq.) 65. Oracle incorporates by reference the allegations in Paragraphs 1 through
64 above as though fully set forth herein. 66. HP has engaged in the following, non-exhaustive list of conduct
proscribed by section 43(a) of the Lanham Act, 15. U.S.C. 1125(a): Knowingly making and causing to be made false and deceptive statements to Oracle and the public in connection with the sale and advertisement of its Itanium products. These false and deceptive statements were made regarding Itaniums status and future and Intels commitment thereto, including without limitation that Intel is independently committed to developing multiple generations of Itanium chips under an Itanium roadmap that extends for more than ten years from March 2011. These false and deceptive statements were made in interstate commerce with the intent to deceive the public. These false and deceptive statements deceived and are likely to deceive the public, including Oracles and HPs Itanium customers and prospective Oracle and HP customers. These misstatements are material, in that they influenced and are likely to influence the publics purchasing decisions. Knowingly disseminating false, deceptive and defamatory statements to its customers and the marketplace in connection with the sale and advertisement of its Itanium products. These false, deceptive and defamatory statements
22
Jennifer Valentino-DeVries, Is Leo Apotheker a Good Fit as H-Ps New CEO?, WALL ST. J., Sept. 30, 2010, available at http://blogs.wsj.com/digits/2010/09/30/is-leo-apotheker-a-goodfit-as-h-ps-newceo/. John Paczkowski, HP Names Ex-SAP Chief Apotheker as CEO, ALL THINGS D, Sept. 30, 2010, available at http://allthingsd.com/20100930/hp-names-new-ceo-leo-apotheker/.
23
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67.
were made regarding Oracle, including without limitation that Oracle is the cause of Itaniums demise, that Oracle is arbitrarily causing harm to Itanium users, that Oracle has lied about Itaniums future prospects and that Oracle has a history and pattern of anti-customer behavior. These false and deceptive statements were made in interstate commerce with the intent to deceive the public. These false and deceptive statements deceived and are likely to deceive the public, including Oracles and HPs Itanium customers and prospective Oracle and HP customers. These misstatements are material, in that they influenced and are likely to influence the publics purchasing decisions. HPs false and deceptive advertising has and will deceive the public and
cause a loss of Oracles sales. Oracle and the public will likely continue to suffer such injury unless HPs conduct is enjoined and restrained by the Court. Oracle therefore seeks an injunction pursuant to section 43(a) of the Lanham Act, 15. U.S.C. 1125(a), prohibiting HP from engaging in the unlawful and deceptive conduct described above. 68. Oracle has suffered injury as a direct and proximate result of HPs false
and deceptive advertising. Due to HPs false and deceptive statements about Itaniums future, Oracle, customers and potential customers have been actually deceived, and Oracle has lost potential sales in both the hardware and software markets. 69. Oracle seeks monetary damages pursuant to sections 35 and 43(a) of the
Lanham Act, 15. U.S.C. 1117(a), 1125(a), to recover HP's profits, damages sustained by Oracle and the costs of the action. 70. HPs intentional and willful dissemination of false statements regarding its
Itanium products and Oracle make this an exceptional case under section 35 of the Lanham Act, 15 U.S.C. 1117(a), and thus Oracle is entitled to an award of reasonable attorneys fees and costs.
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73. 71.
SECOND CAUSE OF ACTION (Violation of Cal. Bus. & Prof. Code 17500 et seq.) Oracle incorporates by reference the allegations in Paragraphs 1 through
64 above as though fully set forth herein. 72. HP has engaged in the following non-exhaustive list of conduct proscribed
by California Business and Professions Code section 17500 et seq.: Knowingly making and causing to be made false and deceptive statements to Oracle and the public regarding Itaniums status and future and Intels commitment thereto, including without limitation that there is a long ten-year roadmap for multiple generations of Itanium chips that Intel fully supports. These material misstatements were made with the intent to secure from Oracle and the public commitments and obligations with respect to the purchase and/or support of HPs Itanium products. The material misstatements deceived and are likely to deceive Oracle and the public, including Oracles and HPs Itanium customers. Knowingly failing to disclose to Oracle and the public material information regarding Itaniums status and future, including without limitation its secret agreements to pay Intel to continue producing
the Itanium chip beyond the products natural life. These material omissions were made with the intent to secure from Oracle and the public commitments and obligations with respect to the purchase and/or support of HPs Itanium products. The material omissions deceived and are likely to deceive Oracle and the public, including Oracles and HPs Itanium customers. HP had a duty to disclose material information to Oracle and the public
when it undertook to make public representations about Itaniums longevity. Instead, HP knowingly and actively concealed information from Oracle and the public.
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74.
HP had exclusive knowledge of this informationOracle and the public
did not know and could not have known about Itaniums real longevity. Accordingly, Oracle was unable to compete on a level playing field and lost business opportunities. 75. Oracle has suffered injury in fact and has lost money or property as a
direct and proximate result of HPs unlawful and deceptive conduct, and will continue to suffer such injury unless HPs conduct is enjoined and restrained by the Court. Oracle therefore seeks an injunction pursuant to California Business and Professions Code section 17535 prohibiting HP from engaging in the unlawful and deceptive conduct described above. 76. Moreover, HP was unjustly enriched as a direct and proximate result of
HPs unlawful and deceptive conduct. Oracle seeks restitution pursuant to California Business and Professions Code section 17535 to restore to Oracle all monies HP acquired as a result of its unlawful and deceptive conduct. THIRD CAUSE OF ACTION (Violation of Cal. Bus. & Prof. Code 17200 et seq.) 77. Oracle incorporates by reference the allegations in Paragraphs 1 through
64 above as though fully set forth herein. 78. HP has engaged in the following non-exhaustive list of unlawful, unfair
and deceptive business practices: Making false and deceptive statements to Oracle and the public regarding Itaniums status and future and Intels commitment thereto, including without limitation that there is a long ten-year roadmap for multiple generations of Itanium chips that Intel fully supports. These material misstatements deceived and are likely to deceive Oracle and the public, including Oracles and HPs Itanium customers. Failing to disclose to Oracle and the public material information regarding Itaniums status and future, including without limitation its secret agreements to pay Intel 35 to continue producing the Itanium
1 2 3 4 5 6 7 8 9 10 11 12

chip beyond the products natural life. These material omissions deceived and are likely to deceive Oracle and the public, including Oracles and HPs Itanium customers. Disseminating false, deceptive and defamatory statements to its customers and the marketplace regarding Oracle, including without limitation that Oracle is the cause of Itaniums demise, that Oracle is arbitrarily causing harm to Itanium users, that Oracle has lied about Itaniums future prospects and that Oracle has a history and pattern of anti-customer behavior. These false, deceptive and defamatory statements deceived and are likely to deceive the public, including Oracles and HPs Itanium customers. Making false representations and material omissions of fact to Oracle and the public in connection with the sale and advertisement of its Itanium products in
13
violation of California Business and Professions Code section 17500 et seq.,
14
as explained above.
15 16
Making false representations and material omissions of fact to Oracle and the public in connection with the sale and advertisement of its Itanium products in
17
violation of the Lanham Act, 15 United States Code section 1501 et seq., as
18
explained above.
19
79. HP had a duty to disclose material information to Oracle and the public
20
when it undertook to make public representations about Itaniums longevity. Instead, HP
21
knowingly and actively concealed information from Oracle and the public.
22
80. HP had exclusive knowledge of this informationOracle and the public
23
did not know and could not have known about Itaniums real longevity. Accordingly, Oracle
24
was unable to compete on a level playing field and lost business opportunities.
25
81. Oracle has suffered injury in fact and has lost money or property as a
26
direct and proximate result of HPs unlawful, unfair and deceptive conduct, and will continue to
27
suffer such injury unless HPs conduct is enjoined and restrained by the Court. Oracle therefore
28
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seeks an injunction pursuant to California Business and Professions Code section 17203 prohibiting HP from engaging in the unlawful, unfair and deceptive conduct described above. 82. Moreover, HP was unjustly enriched as a direct and proximate result of
HPs unlawful, unfair and deceptive conduct. Oracle seeks restitution pursuant to California Business and Professions Code section 17203 to restore to Oracle all monies HP acquired as a result of its unlawful, unfair and deceptive conduct. FOURTH CAUSE OF ACTION (Defamation Libel) 83. Oracle incorporates by reference the allegations in Paragraphs 1 through
64 above as though fully set forth herein. 84. HP has defamed Oracle by publishing numerous false and misleading
statements alleging Oracle has engaged in anti-competitive and anti-customer behavior, including without limitation the statements referenced in Paragraph 33 above. 85. By and through these statements, HP has imputed to Oracle fraud,
dishonesty and questionable business practices in connection with Oracles sale and support of its software and hardware products. 86. HPs statements were made without privilege and were published with
knowledge of their falsity or reckless disregard for their truth or falsity, i.e., with actual malice. 87. HPs statements were published with the intent of harming Oracle, its
reputation and its relationships with current and prospective customers. And in fact, Oracle has suffered injury as a direct and proximate result of HPs conduct. Oracle has expended and continues to expend substantial resources alleviating the baseless concerns fomented by HP, and defending itself in the media. 88. HPs actions have damaged Oracle, in an amount to be proven at trial.
Oracle also seeks and is entitled to punitive damages because HPs statements were made with knowledge of their falsity, or with reckless disregard of their truth or falsity and with the intention of causing injury to Oracle.
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89.
Additionally, Oracle demands a public apology from HP, and a public
acknowledgement that its defamatory statements against Oracle are false and were made with knowledge of their falsity. FIFTH CAUSE OF ACTION (Intentional Interference with Contractual Relations) 90. Oracle incorporates by reference the allegations in Paragraphs 1 through
64 above as though fully set forth herein. 91. Oracle has existing valid contractual relationships with customers that
currently use Oracle products under which the customers have agreed to purchase and/or compensate Oracle for services provided. 92. 93. HP has knowledge of these valid contractual relationships. HPs intentional actions and conduct, including without limitation those
set forth in Paragraphs 29-40 above, were and are designed to induce a breach and/or disruption of Oracles contractual relationships with its existing customers. 94. HP has in fact disrupted Oracles existing contractual relationships,
resulting in customers seeking compensation and guarantees from Oracle, threatening to withdraw their business from Oracle, and/or vowing not to do business with Oracle in the future. 95. HP knew that its conduct was certain or substantially likely to directly and
proximately cause the breach and/or disruption of Oracles contractual relationships with its existing customers. 96. HPs intentional conduct has no lawful or legitimate competitive purpose.
To the contrary, HPs defamatory, deceptive, misleading, unfair, and unlawful conduct was designed specifically to cause harm to Oracle and has violated California law. 97. Oracle has suffered injury to its business, including damage to its
reputation and customer relationships and lost sales, as a direct and proximate result of HPs interference with its existing contractual relationships.
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SIXTH CAUSE OF ACTION (Intentional Interference with Prospective Economic Advantage) 98. Oracle incorporates by reference the allegations in Paragraphs 1 through
64 above as though fully set forth herein. 99. Oracle has existing and prospective relationships with customers that
currently use or are considering using Oracle products. Many of these customers have existing and ongoing contracts with Oracle under which they have agreed to purchase and/or compensate Oracle for services provided. Oracle also has relationships and is in negotiations with prospective customers who are considering the use of Oracle products or services in the future. These relationships very likely would have resulted in future economic benefit to Oracle. HP has knowledge of these relationships. 100. HP has intentionally sought to interrupt Oracles relationships with its
existing and prospective customers through the conduct described above, including without limitation intentionally performing the acts and engaging in the conduct set forth in Paragraphs 29-40 above, designed to disrupt Oracles customer relationships. 101. HP has in fact disrupted Oracles existing and prospective customer
relationships, resulting in customers seeking compensation and guarantees from Oracle, threatening to withdraw their business from Oracle, and/or vowing not to do business with Oracle in the future. 102. HPs intentional conductdesigned to interfere with Oracles existing and
prospective customer relationshipshas no lawful or legitimate competitive purpose. To the contrary, HPs defamatory, deceptive, misleading, unfair and unlawful conduct was designed specifically to cause harm to Oracle and has violated California law. 103. Oracle has suffered injury to its business, including damage to its
reputation and customer relationships and lost sales, as a direct and proximate result of HPs interference with its prospective economic relationships.
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104.
SEVENTH CAUSE OF ACTION (Fraud / Equitable Rescission) Oracle incorporates by reference the allegations in Paragraphs 1 through
64 above as though fully set forth herein. 105. HP fraudulently induced Oracle to enter into the Hurd Agreement by
actively concealing material information, namely, that: (1) HP was secretly paying Intel to continue producing the Itanium chip and represent to the public its longterm commitment thereto when Intel otherwise would have ceased Itanium development, and (2) HP was in the process of hiring Messrs. Apotheker and Lane as its new executive leadership, the intended consequence of which was to move HP into a new strategic direction less complementary to and more competitive with Oracles business. HP had exclusive knowledge of this informationit understood that Oracle did not know and could not have known of these material facts. 106. HP understood that had Oracle known of HPs deal with Intel to
artificially extend Itaniums lifespan, Oracle would not have agreed to continue software development for Itanium in perpetuity as HP alleges Oracle did pursuant to Paragraph 1 of the Hurd Agreement. 107. Moreover, given the well-documented animosity between Oracle and
Messrs. Apotheker and Lane, HP knew that had Oracle known of HPs imminent plans to hire these individuals, Oracle would not have signed the Hurd Agreement, especially any partnership commitments or other business restrictions (e.g., Paragraph 7 of the Hurd Agreement) unrelated to Mr. Hurds move to Oracle. 108. HP had a duty to disclose this exclusively-held material information.
Instead, HP knowingly and actively withheld this information from Oracle with the intent to fraudulently induce Oracle to enter into the Hurd Agreement. 109. In addition to concealing this information from Oracle, HP made
representations to Oracle in the context of negotiating the Hurd Agreement regarding Itaniums
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future and HPs alleged desire for an ongoing partnership. HP knew that these affirmative and incomplete statements of its intentions were likely toand didmislead Oracle. 110. Oracle did not know and could not have known during negotiation of the
Hurd Agreement that HP had entered into secret agreements with Intel, or that HP was secretly in the process of hiring senior executives whose interests were in sharp conflict with Oracles. Moreover, because there was no actual, threatened or contemplated judicial or quasi-judicial proceeding between HP and Oracle at the time of HPs fraudand in fact, HP had publicly represented that it had no intention of bringing any legal claims against OracleOracle had and expected no opportunity to present any claim or defense or to conduct any discovery regarding the subject matter of its negotiations with HP in any legal proceeding. Moreover, HPs fraud did not go to the subject matter of the dispute that was in litigation, its purported trade secrets/employment claim against Mr. Hurd. HPs fraud was thus extrinsic. 111. Ignorant of HPs plans regarding Itanium and Messrs. Apotheker and
Lane, Oracle was induced to enter into the Agreement. Had Oracle known these material facts, Oracle would not have signed the Agreement nor bound itself to any of the obligations contained therein, regardless of scope or specificity, including the business restrictions on it. 112. 113. 114. Oracles reliance was reasonable and justifiable. Oracle has suffered injury as a direct and proximate result of HPs fraud. Oracle seeks equitable rescission of the Hurd Agreement. Oracle also
seeks damages for the economic injury and lost business opportunities it has suffered as a direct and proximate result of HPs fraud, including attorneys and other fees expended in defending against HPs lawsuit and prosecuting this cross-complaint, in an amount to be proven at trial. 115. HPs conduct was malicious, oppressive and fraudulent, and Oracle is
therefore entitled to an award of punitive and exemplary damages. ///
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SF\886162
PRAYER FOR RELIEF WHEREFORE, Oracle prays for judgment against HP as follows: 1. 2. 3. 4. Equitable rescission of the Hurd Agreement; General and special damages in an amount to be proven at trial; Punitive damages as permitted by law; Permanent injunctive relief, including an order prohibiting HP from making
false and misleading statements regarding Oracles business practices and commitment to its customers and remedying the harm caused by HPs conduct; 5. 6. 7. Reasonable attorneys fees as permitted by law; Costs of suit herein incurred; and All such other and further relief as the Court may deem proper. DEMAND FOR JURY TRIAL Cross-Complainant Oracle hereby demands a trial by jury in the above-captioned matter on all matters so triable.
Dated: December 2, 2011
LATHAM & WATKINS LLP Daniel M. Wall
By
/Daniel M. Wall Daniel M. Wall Attorneys for Defendant and CrossComplainant Oracle Corporation
42

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ORACLE CORPORATION, Cross-Complainant, v. HEWLETT-PACKARD COMPANY, Cross-Defendant.

PUBLIC REDACTED VERSION

Ex. A (Hurd Agreement (Sept. 20, 2010)).

manufacture Itanium chips by paying it

Itanium Collaboration Agreement whereby Intel, Itanium

Under that agreement

HP extended the Itanium Collaboration Agreement

Rather, in a clever deception,

A key part of this is that

. For example, an HP document entitled

Other documents show HPs use of

HP revealed none of this. Instead, beginning in 9

ATTORNEYS AT LAW SAN FRANCISCO

Itanium chips were to be and

Itanium was already at end of life, with

Moreover, HP also . As an HP employee

ATTORNEYS AT LAW SAN FRANCISCO

were not its only

HP continued its defamatory campaign by filing this lawsuit against

ATTORNEYS AT LAW SAN FRANCISCO

Ex. A (Hurd Agreement (Sept. 20, 2010)).

ATTORNEYS AT LAW SAN FRANCISCO

HP had exclusive knowledge of this informationOracle and the public

ATTORNEYS AT LAW SAN FRANCISCO

Additionally, Oracle demands a public apology from HP, and a public

therefore entitled to an award of punitive and exemplary damages. ///

Dated: December 2, 2011

LATHAM & WATKINS LLP Daniel M. Wall

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