Oracle Corporation et al v. SAP AG et al

Filing 1063

Declaration of Marcin Plonka in Support of 1062 Reply to Opposition/Response, Declaration of Marcin Plonka in Support of Defendants' Reply in Support of Motion to Stay Execution of Judgment through Appeal and Approval of Proposed Security Pursuant to FRCP 62 filed bySAP AG, SAP America Inc, Tomorrownow Inc. (Related document(s) 1062 ) (Froyd, Jane) (Filed on 4/20/2011)

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Robert A. Mittelstaedt (SBN 060359)
Jason McDonell (SBN 115084)
Elaine Wallace (SB 197882)
JONES DAY
th
555 California Street, 26 Floor
San Francisco, CA 94104
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]
[e-mail]
Tharan Gregory Lanier (SB 138784)
Jane L. Froyd (SB 220776)
JONES DAY
1755 Embarcadero Road
Palo Alto, CA 94303
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
j [e-mail]
Scott W. Cowan (Admitted Pro Hac Vice)
Joshua L. Fuchs (Admitted Pro Hac Vice)
JONES DAY
717 Texas, Suite 3300
Houston, TX 77002
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
j [e-mail]

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Attorneys for Defendants
SAP AG, SAP AMERICA, fNC., and
TOMORROWNOW, fNC.
UNITED STATES DISTRICT COURT
NORTHf:RN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

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ORACLE USA, fNC., et aI.,

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Plaintiffs,

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v.

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SAP AG, et aI.,

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Defendants.

Case No. 07-CV-1658 PlH (EDL)

DECLARATION OF MARCI
PLONKA IN SUPPORT OF
DEFENDA TS'REPLYINSUPPORT
OF MOTION TO STAY EXECUTION
OF JUDGMENT THROUGH APPEAL
AND APPROVAL OF PROPOSED
SECURITY PURSUA T TO FRCP 62
Date:
Time:
Courtroom:
Judge:

May 4, 201\
9:00 a.m.
3, 3rd Floor
Hon. Phyllis 1. Hamilton

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PLONKA DEC!.. ISO DEI'S.' REPLY
Case No. 07-eV·1658 PJH (EDL)

I, Marcin Plonka, declare as follows:
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I make this declaration based on personal knowledge and, if called upon to do so, could
testify competently thereto.

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I.

I am the Corporate Risk Manager, Americas Region at SAP AG.

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2.

Defendants are currently working to obtain a secured bond backed by letters of

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credit as the fom1 of security to stay execution of judgment in this case, as well as an unsecured

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bond, in the event that Defendants are not able to obtain the secured bond in a timely manner.

3.

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In order to obtain this secured bond, Defendants must negotiate with insurance

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carriers regarding multiple indemnity agreements that would support an acceptable form of the

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secured bond, as well as financial institutions who will back and issue the letters of credit that

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serve as the bond collateral.

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requiring that a syndicate of financial institutions be formed to back and issue the letters of credit.

5.

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Because of the large size of the verdict, more than one letter of credit is necessary,

Also because of the large size of the verdict, a detailed credit facility is necessary,

which requires opinions, certificates, and notarization.

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6.

In Germany, the notarization process is different from and more time-consuming

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than tl1e process in tl1e United States. In the area of Baden- Wuerrtember, where SAP AG is

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located, the notary public is employed by the local court and is similar to a judge. The process

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itself takes a matter of days rather than hours.

7.

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The secured bond cannot be issued until the letlers of credit have been issued by

financial institutions and are transferred to the insurance carrieres)' possession.

8.

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The physical movement of the indemnity agreements, bond forms and letters of

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credit papers amongst the various parties and between countries alone could take two weeks.

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Defendants now estimate that the entire process of securing the bond will minimally take twenty-

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one days to complete.

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9.

To obtain an unsecured bond in the amount of the judgment plus three years post-

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judgment interest ($1,325,033,547), Defendants must negotiate with at least five or more

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lI1surance compames.

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PLONKA DECL. ISO DEI'S.' REPLY
Case No. 07·CV-1658 I'll! (EDL)

10.

Each insurance company that underwrites the unsecured bond requires, at

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minimum, an indemnity agreement and parental guarantee, each of which must be negotiated,

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signed, notarized and sent to the United States. The insurance companies cannot finish

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underwriting the bond until this is done.

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I declare under penalty of perjury under the laws of the United States and the State of
California that the foregoing is true and correct. Executed this 20th day of April, 2011 in
ewtown Square, Pennsylvania.

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II

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PLONKA DECL. ISO DEFS'- REPLY

SVI-92028vl

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Case No. 07-CV·1658 PJH