Oracle Corporation et al v. SAP AG et al

Filing 1150

RESPONSE (re 1122 MOTION for Leave to File Motion for Reconsideration Regarding Saved Development Costs, 1124 MOTION for Leave to File Motion for Reconsideration Regarding Up-Sell and Cross-Sell Projections ) Defendants' Opposition to Oracle's Motions for Leave to File Motions for Reconsideration Regarding (1) Saved Development Costs and (2) Up-Sell and Cross-Sell Projections filed bySAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Proposed Order, # 2 Proposed Order)(Froyd, Jane) (Filed on 5/1/2012)

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Robert A. Mittelstaedt (SBN 060359)
Jason McDonell (SBN 115084)
Elaine Wallace (SBN 197882)
JONES DAY
555 California Street, 26th Floor
San Francisco, CA 94104
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]
[e-mail]
Tharan Gregory Lanier (SBN 138784)
Jane L. Froyd (SBN 220776)
JONES DAY
1755 Embarcadero Road
Palo Alto, CA 94303
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[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]
[e-mail]
Attorneys for Defendants
SAP AG, SAP AMERICA, INC., and
TOMORROWNOW, INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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ORACLE USA, INC., et al.,

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Plaintiffs,

DEFENDANTS’ OPPOSITION TO ORACLE’S
MOTIONS FOR LEAVE TO FILE MOTIONS
FOR RECONSIDERATION REGARDING (1)
SAVED DEVELOPMENT COSTS AND (2) UPSELL AND CROSS-SELL PROJECTIONS

Defendants.

Date:
Time:
Place:
Judge:

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v.

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SAP AG, et al.,

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

N/A
N/A
3rd Floor, Courtroom 3
Hon. Phyllis J. Hamilton

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SVI-107525v1

DEFS.’ OPPOSITION TO ORACLE’S MOTIONS FOR
LEAVE TO FILE MOTIONS FOR RECONSIDERATION
Case No. 07-CV-1658 PJH (EDL)

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I.

INTRODUCTION
This Opposition responds to Oracle’s two motions for leave to file motions for

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reconsideration. Oracle’s motions disregard this Court’s orders and this District’s rules.

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Although the Court expressly ordered that the new trial is limited to determining lost and

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infringer’s profits only, Oracle seeks to revive evidence that relates solely to the legally precluded

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hypothetical license claim—i.e., evidence of saved development costs and cross-sell/up-sell

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projections designed to inflate that license claim. The Court need not revisit its rulings relating to

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this now-irrelevant evidence and should deny Oracle’s motions as moot. Moreover, the motions

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wholly fail to comply with the Local Rules. Contrary to Oracle’s assertion, the Court did not fail,

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manifestly or otherwise, to consider dispositive legal arguments. There are few, if any, issues in

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this case more litigated than saved development costs and cross-sell/up-sell evidence both

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independently and as they relate to the license theory. The Court has spent significant judicial

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resources carefully analyzing and thoughtfully considering the parties’ extensive arguments on

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these topics. Indeed, Oracle’s papers eventually concede that the Court considered Oracle’s

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arguments, but simply disagreed with them. That is no basis for reconsideration. Oracle’s

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insistence on offering repeated substantive argument in violation of the Local Rules’ express

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prohibition is yet another reason to deny Oracle’s motions, and impose sanctions.

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II.

THE COURT’S PREVIOUS RULINGS

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On numerous occasions, the Court has made clear that Oracle may not seek damages

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based on saved development costs or cross-sell/up-sell opportunities—whether as standalone

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claims or in support of Oracle’s now-precluded hypothetical license claim. These orders lay the

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groundwork for the evidentiary rulings to which Oracle now belatedly objects.

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A.

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On August 17, 2010, the Court granted summary judgment that Oracle may not seek

Saved Development Costs.

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copyright damages “based on ‘saved development costs.’” ECF No. 762 (8/17/10 Order) at 22.

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At the September 30, 2010 pretrial conference the Court affirmed its holding, stating “[T]here

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will be no testimony from an expert on saved acquisition costs. That’s out of the case.”

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Declaration of Tharan Gregory Lanier (“Lanier Decl.”) ¶ 1, Ex. 1 (9/30/10 Hrg. Tr.) at 121:15SVI-107525v1

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DEFS.’ OPPOSITION TO ORACLE’S MOTIONS FOR
LEAVE TO FILE MOTIONS FOR RECONSIDERATION
Case No. 07-CV-1658 PJH (EDL)

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122:10); see also ECF No. 914 (9/30/10 Order) at 3 (ruling that “no witness may testify regarding

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saved acquisition costs”).

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B.

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On September 17, 2009, Magistrate Judge Laporte ordered discovery sanctions against

Cross-Sell/Up-Sell Projections.

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Oracle, precluding Oracle from presenting at trial evidence of alleged lost profits relating to:

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(1) Oracle customers that did not become TomorrowNow customers; (2) licensing revenue, as

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opposed to support revenue; and (3) products not supported by TomorrowNow. ECF No. 482

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(9/17/09 Order) (“Sanctions Order”). These precluded sales included so-called “cross-sell” and

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“up-sell” opportunities. Id. This Court fully adopted the Sanctions Order on November 2, 2009,

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overruling Oracle’s objections and holding that “the precluded evidence will NOT be admitted

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through the back door.” ECF No. 532 (11/2/09 Order) at 1 (emphasis in original).

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On September 30, 2010, having considered the parties’ written and oral arguments, the

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Court affirmed the Sanctions Order and granted Defendants’ Motion in Limine No. 2 “to exclude

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evidence of lost profits (as part of or as support for [Oracle’s] fair market value license claim).”

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ECF No. 914 (9/30/10 Order) at 2. The Court held: “Oracle made no adequate disclosure and

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SAP had no opportunity to take discovery[] regarding lost profits in the form of lost software

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license sales (lost ‘cross-sell’ and ‘up-sell’ opportunities) or lost license revenues.” Id.

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At trial, the Court again affirmed the Sanctions Order and further defined its scope. After

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detailed briefing and lengthy oral argument, the Court confirmed on November 8, 2010 that the

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Sanctions Order precluded not only evidence of cross-sell/up-sell opportunities offered in support

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of Oracle’s lost profits claim, but also evidence of cross-sell/up-sell projections offered to bolster

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Oracle’s hypothetical license claim. Lanier Decl. ¶ 2, Ex. 2 (11/8/10 Trial Tr.) at 826:14-21.

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III.

ARGUMENT

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A.

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This Court has stated unequivocally that Oracle may not pursue hypothetical license

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damages in this case as a matter of law and that the new trial is limited to determining “lost

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profits/infringer’s profits only.” ECF No. 1081 (9/1/11 Order) at 20; see also ECF No. 1088

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(9/16/11 Order) at 2; ECF No. 1103 (1/6/12 Order) at 4 (referring to “new trial on lost

The Court Should Deny Both Motions as Moot.

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DEFS.’ OPPOSITION TO ORACLE’S MOTIONS FOR
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Case No. 07-CV-1658 PJH (EDL)

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profits/infringer’s profits”); cf. Defs.’ Opp. to Mot. for Clarification (filed concurrently). Yet,

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through its motions, Oracle seeks to revive precluded evidence of saved development costs and

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cross-sell/up-sell projections that it would offer to support a hypothetical license claim. See, e.g.,

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ECF No. 1122 at 1, 4 (arguing that evidence of saved costs “is relevant and admissible for the

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limited purposes of providing the jury with a reasonableness check on Meyer’s measure of the

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hypothetical license valuation”); ECF No. 1124 (Pls.’ Mot.) at 1 (claiming that evidence of cross-

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sell/up-sell projections is “relevant to show the amount of the royalty that Oracle would have

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demanded from SAP in hypothetical negotiations for a license to use that software”), 6 (stating

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that evidence of cross-sell/up-sell projections “would not be used to show lost profits and rather

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supports Oracle’s hypothetical license theory”).
This previously excluded evidence is irrelevant to the new trial and inadmissible on that

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basis alone. Fed. R. Evid. 402. Thus, Oracle’s motions should be denied as moot. See, e.g.,

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Pickard v. DOJ, No. C 10-05253 LB, 2011 U.S. Dist. LEXIS 74127, at *2 (N.D. Cal. July 8,

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2011) (denying motion for certification of interlocutory appeal as moot in light of court’s grant of

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transfer motion whose previous denial party sought to appeal).

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B.

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Despite parroting the Local Rules’ requirements, Oracle fails to comply with them. The

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sole justification that Oracle offers to support its motions is that the Court “manifestly failed” to

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consider dispositive legal arguments that would have supported admitting evidence of saved

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development costs and cross-sell/up-sell projections. But Oracle’s own papers show that Oracle’s

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real objection is not that the Court overlooked these arguments, but that the Court was not

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convinced by them. Oracle’s mere disagreement with the Court’s rulings does not support

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reconsideration; nor do Oracle’s improperly repeated arguments.

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Oracle’s Motions Fail to Comply with Local Rule 7-9 and Should Be Denied.

1.

Legal Standards.

Where a court’s ruling has not resulted in a final judgment or order, a party may seek

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reconsideration of the ruling under Civil Local Rule 7-9, but must first obtain leave of the court.

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Civ. L.R. 7-9(a)-(b) (citing Fed. R. Civ. P. 54(b)). The Rule allows reconsideration under only

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three circumstances: (1) where, at the time of the motion, “a material difference in fact or law
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DEFS.’ OPPOSITION TO ORACLE’S MOTIONS FOR
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Case No. 07-CV-1658 PJH (EDL)

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exists from that which was presented to the Court before entry of the interlocutory order for

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which reconsideration is sought”; (2) the “emergence of new material facts or a change of law

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occurring after the time of such order”; or (3) “manifest failure by the Court to consider material

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facts or dispositive legal arguments” presented to the court before the order that the party seeks to

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revisit was issued. Civ. L.R. 7-9(b). Civil Local Rule 7-9 also expressly prohibits the repetition

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of “any oral or written argument” made by the applying party “in support of or in opposition to

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the interlocutory order which the party now seeks to have reconsidered.” Civ. L.R. 7-9(c). “Any

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party who violates this restriction shall be subject to appropriate sanctions.” Id. Courts may

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“summarily deny motions that are not filed in compliance with the Local Rules.” Grove v. Wells

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Fargo Fin. Cal., Inc., 606 F.3d 577, 582 (9th Cir. 2010) (upholding district court’s denial of

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motion to tax costs that was not in compliance with court’s local rules); Elder-Evins v. Casey, No.

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C 09-05775 SBA, 2011 U.S. Dist. LEXIS 103080, at *5-6 (N.D. Cal. Sept. 13, 2011) (denying

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motion for leave to file motion for reconsideration for failing to show any of three conditions

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required for reconsideration under Civil Local Rule 7-9).

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2.

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Oracle’s Motion Regarding Saved Development Costs Evidence Fails
to Comply with Local Rule 7-9.

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As basis for its motion for leave regarding saved development costs, Oracle argues only

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that the Court “manifestly failed to consider a material fact before the Court prior to its ruling.”

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ECF No. 1122 at 4. But to support this position, Oracle offers nothing more than a rehash of the

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arguments it presented on summary judgment and in connection with its Daubert briefing. See id.

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at 4-5. Oracle’s recycled arguments, which the Court considered and rejected, are improper and

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cannot justify reconsideration.

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Contrary to Oracle’s claim, the Court did not “manifestly fail” to consider argument as to

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the admissibility of saved development costs evidence. The parties offered express argument on

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these issues in connection with Defendants’ Daubert motion to exclude testimony from Oracle

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“expert” Paul K. Pinto, which the Court considered before ruling to exclude evidence of saved

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development costs. There, as here, Oracle argued that despite the Court’s summary judgment

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order excluding copyright damages “based on ‘saved development costs,’” ECF No. 762 (8/17/10
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DEFS.’ OPPOSITION TO ORACLE’S MOTIONS FOR
LEAVE TO FILE MOTIONS FOR RECONSIDERATION
Case No. 07-CV-1658 PJH (EDL)

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Order) at 22, Pinto’s opinions on saved costs were “still relevant considerations in determining

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the fair market value of the hypothetical license” because they bear on “what it would have cost

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SAP for research and development,” rather than “the amounts that Oracle allegedly spent to

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develop and/or acquire the intellectual property at issue.”1 Compare ECF No. 843 (Pls.’ Opp. to

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Defs.’ Mot. to Exclude Pinto) at 9 to ECF No. 1122 at 4-5 (describing testimony about “SAP’s

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saved development costs as objective evidence relevant to the hypothetical license remedy”). To

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support this position, Oracle misconstrued the summary judgment order as having excluded only

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evidence of Oracle’s saved costs, rather than SAP’s saved costs. See ECF No. 843 (Pls.’ Opp. to

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Defs.’ Mot. to Exclude Pinto) at 9. Oracle repeats that mischaracterization, arguing that the

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Court’s exclusion of expert testimony regarding “saved acquisition costs” was based on the

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Court’s “fail[ure] to consider” that Oracle experts would offer evidence of allegedly non-

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precluded SAP saved costs.2 ECF No. 1122 at 4. But the Court considered all of the arguments

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and ultimately ruled that all testimony on purported saved costs should be excluded as irrelevant.

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ECF No. 876 (Defs.’ Reply iso Mot. to Exclude Pinto); Lanier Decl. ¶ 1, Ex. 1 (9/30/10 Hrg. Tr.)

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at 121:10-122:10 (“And I totally agree . . . there will be no testimony from an expert on saved

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acquisition costs. That’s out of the case.”).

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Oracle offers no basis for its claim that the Court overlooked these arguments, which

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Oracle now improperly re-advances. Civ. L.R. 7-9(c); Runge v. Ippollito, No. C 06-5218 PJH

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(PR), 2009 U.S. Dist. LEXIS 27125, at *3 (N.D. Cal. Mar. 23, 2009) (Hamilton, J.) (denying

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motion for leave where party failed to make required showing under Civil Local Rule 7-9 and

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instead “attempt[ed] to reargue” previous positions). Thus, the Court should deny Oracle’s

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motion for leave as groundless. See Elder-Evins, 2011 U.S. Dist. LEXIS 103080, at *5-6;

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Oracle also advanced these arguments on summary judgment—arguments that the Court
unequivocally rejected. See, e.g., ECF No. 677 (Pls.’ Opp. to Defs.’ Mot. for Partial Summary
Judgment) at 17-20 (arguing that “[t]he costs SAP saved by using Oracle’s software and support
materials are directly relevant to the FMV of Oracle’s hypothetical license damages” and citing
same authority offered in ECF No. 1122 at 5); ECF No. 762 (8/17/10 Order) at 22.
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Oracle offered an identical argument, objecting to the Court’s ruling excluding expert
testimony regarding saved costs, in its Conditional Motion for New Trial, which the Court denied.
Compare ECF No. 1122 at 5 (arguing relevance of expert testimony on SAP’s alleged saved costs
as “reasonableness check” and claiming prejudice resulting from exclusion) to ECF No. 1046 at
10-11 (same); ECF No. 1066 (Pls.’ Reply iso Cond. Mot. for New Trial) at 9-10 (same); ECF No.
1081 (9/1/11 Order) at 20 (denying conditional new trial motion).
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DEFS.’ OPPOSITION TO ORACLE’S MOTIONS FOR
LEAVE TO FILE MOTIONS FOR RECONSIDERATION
Case No. 07-CV-1658 PJH (EDL)

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Salinas, 2011 U.S. Dist. LEXIS 94354, at *9; Rearden LLC v. Rearden Commerce, Inc., No.

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C 06-07367 MHP, 2009 U.S. Dist. LEXIS 15590, at *6 (N.D. Cal. Feb. 26, 2009) (denying

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motion for leave where party “failed to show a manifest failure that would entitle them to leave to

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file a motion for reconsideration”).

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3.

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Oracle’s Motion Regarding Cross-Sell/Up-Sell Projections Evidence
Fails to Comply with Local Rule 7-9.

As with its motion regarding saved development costs evidence, Oracle does not assert

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that reconsideration of the Court’s November 8, 2010 ruling excluding evidence of cross-sell and

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up-sell projections is justified on the basis of newly discovered facts or a material change in law.

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Instead, Oracle again contends that the Court should revisit its ruling because the Court “fail[ed]

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to consider” arguments that Oracle advanced in favor of admitting such evidence. Oracle’s claim

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is belied by its own papers, which confirm that the Court did not overlook these arguments—it

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simply disagreed with them. Oracle’s reassertion of the very positions the Court thoughtfully

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considered and ultimately rejected in deciding to exclude cross-sell/up-sell projections cannot

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support reconsideration and blatantly disregards the provisions of the Local Rules.

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The Court has considered the scope of Magistrate Judge Laporte’s Sanctions Order on no

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fewer than three occasions, each time with the benefit of complete briefing and, in two cases,

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accompanied by extensive oral argument. Yet, according to Oracle, the Court should review its

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November 8, 2010 ruling construing the Sanctions Order to preclude evidence of cross-sell/up-

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sell projections because the Court allegedly failed to consider three of Oracle’s arguments: (1) the

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Sanctions Order precluded only evidence of lost cross-sell/up-sell opportunities offered to support

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Oracle’s lost profits claim, not evidence of Oracle’s cross-sell/up-sell projections, which Oracle

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would have offered to support its license claim; (2) Defendants should not have been permitted to

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argue that the Sanctions Order applied to cross-sell/up-sell projections evidence; and (3) it would

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violate due process to “extend” the Sanctions Order to preclude cross-sell/up-sell projections

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evidence. ECF No. 1124 at 14-20. Given the considerable resources that the parties and the

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Court have devoted to these issues in the litigation, however, there is no merit to Oracle’s claim

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that the Court “manifestly failed” to consider any of these arguments. See, e.g., Salinas, 2011
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DEFS.’ OPPOSITION TO ORACLE’S MOTIONS FOR
LEAVE TO FILE MOTIONS FOR RECONSIDERATION
Case No. 07-CV-1658 PJH (EDL)

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U.S. Dist. LEXIS 94354, at *9 (denying motion for leave, finding that “[t]here is no indication the

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court ‘manifestly’ failed to consider anything that could prove dispositive”).

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For example, before the Court’s November 8, 2010 ruling, Oracle argued multiple times

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that the Sanctions Order precluded only evidence of lost cross-sell/up-sell opportunities used to

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support lost profits, not of cross-sell/up-sell projections used to support a hypothetical license.3

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ECF No. 499 (Pls.’ Objs. to Sanctions Order) at 1 n.1; ECF No. 790 (Pls.’ Opp. to Defs.’ Mots. in

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Limine) at 1-2, 4 (“Judge Laporte did not exclude . . . evidence of the parties’ expectations in

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January 2005 about future up-sales, cross-sales or any other value they would have attributed to a

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hypothetical license.”), 10; ECF No. 977 (Pls.’ Opp. to Defs.’ Mot. to Enforce) at 4, 6 (same);

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Lanier Decl. ¶¶ 1-2, Ex. 1 (9/30/10 Hrg. Tr.) at 55:4-12, 56:5-6, 57:24-58:6; Ex. 2 (11/8/10 Trial

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Tr.) at 811:14-16, 813:17-22. Oracle cannot in good faith contend that the Court failed to

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consider these arguments when Oracle simultaneously complains that the Court understood—but

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rejected—them. See, e.g., ECF No. 1124 at 6, 8-10 (“But having established that the sanction did

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not cover this evidence, the Court was persuaded otherwise at the last minute . . . .”); ECF No.

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1046 (Pls.’ Cond. Mot. for New Trial) at 5 (“The distinction between forward-looking projections

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and backward-looking results, which the Court expressly and properly recognized, should have

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ended this dispute.”); ECF No. 1066 (Pls.’ Reply iso Cond. Mot. for New Trial) at 3-4 (“The

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distinction between forward-looking projections and backward-looking results, which the Court

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recognized, ends the debate.”); Lanier Decl. ¶ 2, Ex. 2 (11/8/10 Trial Tr.) at 816:25-818:16

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(“Judge Laporte’s order doesn’t address it. No order I’ve issued addresses this. As far as I’m

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concerned, this is [an] entirely new issue.”), 823:22-824:1, 825:2-4, 826:14-21 (“Well, I think

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you’ve both made good arguments. It clearly wasn’t contemplated by the Court at the time of the

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pretrial ruling. But I’m persuaded by the defense position.”).

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Similarly, Oracle has argued numerous times that the Sanctions Order should not preclude

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cross-sell/up-sell evidence offered in support of its hypothetical license claim because Defendants

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Oracle also offered these arguments in support of its Conditional Motion for New Trial.
See, e.g., ECF No. 1046 (Pls.’ Cond. Mot. for New Trial) at 3-5; ECF No. 1066 (Pls.’ Reply iso
Cond. Mot. for New Trial) at 2-4; ECF No. 1081 (9/1/11 Order) at 20.
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DEFS.’ OPPOSITION TO ORACLE’S MOTIONS FOR
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Case No. 07-CV-1658 PJH (EDL)

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allegedly limited their sanctions motion to evidence offered in connection with lost profits.4 ECF

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No. 790 (Pls.’ Opps. to Defs.’ Mots. in Limine) at 2 (arguing that “Defendants expressly limited

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their Rule 37 motion to lost profits”), 4, 10; ECF No. 977 (Pls.’ Opp. to Defs.’ Mot. to Enforce) at

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4-5 (arguing that “Defendants expressly disclaimed that the sanctions order would in any way

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limit Oracle’s ability to present evidence” of cross-sell/up-sell projections); Lanier Decl. ¶ 1, Ex.

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1 (9/30/10 Hrg. Tr.) at 55:4-12, 57:3-7. Although Oracle never expressly argued, as it does now,

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that Defendants are judicially estopped from arguing that the Sanctions Order excludes cross-

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sell/up-sell evidence offered to support Oracle’s hypothetical license claim, this untimely-raised

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argument cannot justify reconsideration and has been waived. Kona Enters., Inc. v. Estate of

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Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (holding that reconsideration motion “may not be used

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to raise arguments or present evidence for the first time when they could reasonably have been

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raised earlier in the litigation”); Napa Cmty. Redevelopment Agency v. Cont’l Ins. Co., No. C-94-

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3284 DLJ, 1995 U.S. Dist. LEXIS 22542, at *6 (N.D. Cal. Nov. 17, 1995) (“If a party simply

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inadvertently failed to raise the arguments earlier, the arguments are deemed waived.”); Runge,

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2009 U.S. Dist. LEXIS 27125, at *3 (denying motion where party failed to comply with Civil

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Local Rule 7-9 and instead “attempt[ed] to reargue” previous positions and “present[] new

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arguments that could have been, but were not, presented at the time of the ruling”).5

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Finally, there is no reason to believe that the Court failed to consider Oracle’s assertion

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that “extending” the Sanctions Order to preclude evidence of cross-sell/up-sell projections would

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violate due process, where Oracle expressly raised this issue before the Court’s ruling.6 ECF No.

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Oracle also argued as much in its Conditional Motion for New Trial. See, e.g., ECF No.
1046 (Pls.’ Cond. Mot. for New Trial) at 3, 7; ECF No. 1066 (Pls.’ Reply iso Cond. Mot. for New
Trial) at 2-3.
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Oracle’s estoppel argument also fails on the merits. Oracle acknowledges that judicial
estoppel prohibits a party from asserting a position only where the party’s position is “clearly
inconsistent” with an earlier position. ECF No. 1124 at 16 (quoting United States v. Ibrahim, 522
F.3d 1003, 1009 (9th Cir. 2008)). As Defendants previously explained, however, Defendants’
position that the Sanctions Order applies with equal force to cross-sell/up-sell projections offered
to support Oracle’s hypothetical license claim is not “clearly inconsistent” with positions they
took in moving for sanctions or in their subsequent efforts to uphold the Sanctions Order. ECF
No. 1055 (Defs.’ Opp. to Pls.’ Cond. Mot. for New Trial) at 8.
6
Oracle reasserted this argument in its Conditional Motion for New Trial. See, e.g., ECF
No. 1046 (Pls.’ Mot. for Cond. New Trial) at 6-7; ECF No. 1066 (Pls.’ Reply iso Cond. Mot. for
New Trial) at 6.
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DEFS.’ OPPOSITION TO ORACLE’S MOTIONS FOR
LEAVE TO FILE MOTIONS FOR RECONSIDERATION
Case No. 07-CV-1658 PJH (EDL)

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977 (Pls.’ Opp. to Defs.’ Mot. to Enforce) at 1-2 (“Barring such evidence at this stage would be

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highly prejudicial to Oracle and would violate due process.”), 7-8 (arguing same); Salinas, 2011

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U.S. Dist. LEXIS 94354, at *9; Elder-Evins, 2011 U.S. Dist. LEXIS 103080, at *5-6; Rearden,

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2009 U.S. Dist. LEXIS 15590, at *6.

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Ultimately, Oracle’s own papers make clear that its real complaint is not that the Court

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overlooked key arguments that Oracle offered to support admitting cross-sell/up-sell projections,

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but that the Court was not persuaded by them. Oracle’s desire to re-litigate these issues in the

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hopes of a better result provides no basis for reconsideration, and Oracle’s reassertion of the very

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positions that the Court considered (and rejected) in finding that the Sanctions Order precludes

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evidence of cross-sell/up-sell projections is improper. Napa Cmty., 1995 U.S. Dist. LEXIS

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22542, at *15 (denying reconsideration motion where party “simply disagree[d] with this Court’s

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finding based on the same facts now presented for reconsideration”); Jackson v. Walker, No. CIV

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S-06-2023 WBS GGH P, 2010 U.S. Dist. LEXIS 45974, at *10 (E.D. Cal. May 11, 2010) (stating

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that “[d]isagreement with a decision or the recapitulation of rejected arguments are not adequate

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bases for reconsideration”) (citation omitted); Civ. L.R. 7-9(c).

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4.

Sanctions Are Appropriate.

Oracle’s conspicuously-timed motions (all three of them) fail so utterly to comply with

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Civil Local Rule 7-9’s requirements that sanctions and appropriate. Civil Local Rule 7-9(c)

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provides that “[n]o motion for leave to file a motion for reconsideration may repeat any oral or

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written argument” previously asserted in connection with challenged ruling and that “[a]ny party

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who violates this restriction shall be subject to appropriate sanctions”). Civ. L.R. 7-9(c); see also

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Fed. R. Civ. P. 11 (providing that papers presented to court must not be filed “for any improper

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purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation”);

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Holgate v. Baldwin, 425 F.3d 671, 676 (9th Cir. 2005) (holding pleading subject to Rule 11

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sanctions if (1) legally or factually baseless from objective perspective, and (2) attorney has not

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conducted reasonable, competent inquiry before filing); Sconiers v. Fresno Cnty. Superior Court,

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No. 1:11-cv-00113-LJO-SMS, 2011 U.S. Dist. LEXIS 122195, at *2-2 (E.D. Cal. Oct. 21, 2011)

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(holding that motion to reconsider orders “has no apparent purpose other than to challenge the
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DEFS.’ OPPOSITION TO ORACLE’S MOTIONS FOR
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authority of the Court” and that “[t]his warning will serve as a predicate for sanctions”), sanctions

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imposed at 2011 U.S. Dist. LEXIS 152225, at *1-2 (E.D. Cal. Dec. 13, 2011). Oracle’s persistent

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disagreement is not a proper basis to seek reconsideration. Its three motions needlessly burden

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the Court and prejudice Defendants’ trial preparation. Sanctions are appropriate.

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IV.

CONCLUSION

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The new trial will be limited to determining lost profits and infringer’s profits—the issues

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that could and should have been tried in November 2010, but for Oracle’s overreaching. Because

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the motions are irrelevant in light of the limited scope of the new trial and entirely fail to comply

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with the requirements of Civil Local Rule 7-9, both should be denied.

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Dated: May 1, 2012

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JONES DAY
By: /s/ Tharan Gregory Lanier
Tharan Gregory Lanier

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Counsel for Defendants
SAP AG, SAP AMERICA, INC., and
TOMORROWNOW, INC.

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DEFS.’ OPPOSITION TO ORACLE’S MOTIONS FOR
LEAVE TO FILE MOTIONS FOR RECONSIDERATION
Case No. 07-CV-1658 PJH (EDL)