Oracle Corporation et al v. SAP AG et al

Filing 1073

Declaration of Zachary J. Alinder in Support of 1072 Opposition/Response to Motion, For Approval of Security Pursuant to Rule 62 filed byOracle International Corporation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Related document(s) 1072 ) (Alinder, Zachary) (Filed on 5/20/2011)

EXHIBIT G

Page 1 of 3

From:

Alinder, Zachary J.

Sent:

Thursday, May 19, 2011 6:51 PM

To:

'Jane L Froyd'

Cc:

'Gregory Castanias'; Howard, Geoff; 'Jacqueline K. S. Lee'; Chin, Lisa; 'Rachel L. Rawson'; Brundage,
Robert A.; 'Greg Lanier'

Subject: RE: Edits to Defendants' Supersedeas Bond
Jane,
We disagree. The changes that Oracle proposed (a) correct errors in the original bond language, (b)
clarify language that would create a risk of confusion, and (c) add standard bond language that increases security
and efficiency for the Parties and the Court. They are substantive and important. We are disappointed that SAP
will not consider Oracle's few proposed revisions, and will provide those to the Court for it to consider instead of
SAP's proposed bond.
Best regards,
Zac

From: Jane L Froyd [mailto:[e-mail]]
Sent: Thursday, May 19, 2011 12:10 PM
To: Alinder, Zachary J.
Cc: 'Gregory Castanias'; Howard, Geoff; 'Jacqueline K. S. Lee'; Chin, Lisa; 'Rachel L. Rawson'; Brundage, Robert
A.; 'Greg Lanier'
Subject: Re: Edits to Defendants' Supersedeas Bond
Zac,
Thank you for providing Oracle's comments. We note however, that these comments are neither substantive in
nature nor aimed at making Oracle more secure in its judgment. For example, the fact that the bond form lists all
three plaintiffs rather than simply OIC is irrelevant as to whether the bond adequately secures Oracle. This is also
true of your second and third comments. Regarding the additional paragraph that you added, all of the sureties
are qualified under Rule 65.1, if they were not Oracle could separately object. And as for the Court's ability to
award judgment, this is something that she already possesses and it does not need to be specifically added to the
bond form.
Given the non-substantive nature of Oracle's comments, and the fact that 10 separate surety companies would
have to sign-off on any changes made to the bond form (impractical given the timing), Defendants still plan to file
the current bond form with the Court tomorrow. If Oracle is willing to stipulate to this bond form, we will submit a
stipulated motion for approval of the bond, and have attached a draft motion for your review. If not, please
provide us with the specific substantive reasons why Oracle does not believe that the bond form adequately
secures the judgment in this case or otherwise does not comply with the Court's Order and applicable rules.
Regards,
Jane
Jane L. Froyd
1755 Embarcadero Road • Palo Alto, CA 94303
DIRECT 650.739.3937 • FAX [phone] • E-MAIL [e-mail]

5/20/2011

Page 2 of 3

From:

"Alinder, Zachary J." <[e-mail]>

To:

"'Jane L Froyd'" <[e-mail]>

Cc:

"'Gregory Castanias'" <[e-mail]>, "Howard, Geoff" <[e-mail]>, "'Jacqueline K. S. Lee'"
<[e-mail]>, "Chin, Lisa" <[e-mail]>, "'Rachel L. Rawson'" <[e-mail]>, "Brundage, Robert A."
<[e-mail]>, "'Greg Lanier'" <[e-mail]>

Date:

05/18/2011 11:33 PM

Subject:

Edits to Defendants' Supersedeas Bond

Jane,
Attached are redline and clean versions of SAP's proposed bond format with minor proposed revisions from
Oracle.
For ease of review, the revisions are as follows:
(1) In the initial paragraph, we've removed Oracle USA and Siebel Systems, and added OIC's successors and
assignees. Oracle USA and Siebel Systems did not receive the $1.3. billion judgment -- only OIC did and only
OIC can execute on that judgment.
(2) The first "NOW, THEREFORE," paragraph was unclear and was missing at least one word in the final
sentence after "said". We attempted to add the missing language and to make the paragraph clear. We did not
alter the paragraph substantively.
(3) We added FRCP 65.1 to the lead-in to Paragraph 6 because it is also applicable and also provides that the
surety shall submit to jurisdiction of the district court. We also changed "as surety" to "each Surety" since the
former language was unclear.
(4) We added a new paragraph at the end to provide two additional points -- (a) we've added language that the
Surety meets the qualifications of Civil Local Rule 65.1 (describing the qualifications of sureties), which I assume
you agree that they must meet, and (b) we've added the ability for the Court to order judgment and award
execution on the surety's obligation, in the event that the surety either defaults or refuses to obey a court order
regarding payment. This language is not only standard, but also, the fact that there are numerous sureties
involved, each with its own financial outlook, makes this minor addition even more important than for a typical
bond.
We expect that these minor revisions will meet with your approval. If you disagree with any of them, we are
available to meet and confer. Oracle hopes that the Parties will be able to present a stipulated motion for
approval of the bond to the Court.
Best regards,
Zac

Zachary J. Alinder
Bingham McCutchen LLP
Three Embarcadero Center | San Francisco, CA 94111
T [phone] | F [phone]
[e-mail]

5/20/2011

Page 3 of 3

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5/20/2011