Oracle Corporation et al v. SAP AG et al

Filing 1212

STIPULATION AND FORM OF JUDGMENT AND ORDER by Hon. Phyllis J. Hamilton granting 1209 Stipulation.(nah, COURT STAFF) (Filed on 8/3/2012)

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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]

BINGHAM McCUTCHEN LLP
DONN P. PICKETT (SBN 72257)
GEOFFREY M. HOWARD (SBN 157468)
BREE HANN (SBN 215695)
Three Embarcadero Center
San Francisco, CA 94111-4067
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]

BOIES, SCHILLER & FLEXNER LLP
DAVID BOIES (Admitted Pro Hac Vice)
333 Main Street
Armonk, NY 10504
Telephone:
[phone]
[e-mail]
STEVEN C. HOLTZMAN (SBN 144177)
1999 Harrison St., Suite 900
Oakland, CA 94612
Telephone:
[phone]
[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.

DORIAN DALEY (SBN 129049)
JENNIFER GLOSS (SBN 154227)
500 Oracle Parkway, M/S 5op7
Redwood City, CA 94070
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
Oracle USA, Inc., et al.

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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,

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STIPULATION AND PROPOSED
FORM OF JUDGMENT AND ORDER

v.

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

SAP AG, et al.,

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Defendants.

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STIPULATION AND PROPOSED FORM OF
JUDGMENT AND ORDER
Case No. 07-CV-1658 PJH (EDL)

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STIPULATION
By and through their respective undersigned counsel, plaintiffs Oracle USA, Inc., Oracle
International Corporation and Siebel Systems, Inc. (“Oracle”) and defendants SAP AG, SAP
America, Inc. and TomorrowNow, Inc. (“Defendants”) (together, the “Parties”) hereby stipulate
and agree to be bound as follows:
1.

Following the first trial, the Court granted judgment as a matter of law. See Dkt.

1081 at 18-20; Dkt. 1088 (clarifying Dkt. 1081); Dkt. 1162 (denying motion to clarify and
denying leave to move for reconsideration). The Court also granted Defendants’ new trial
motion. See id. The Court ordered a new trial on actual damages, limited to lost profits and
infringer’s profits, conditioned on Oracle rejecting a remittitur to $272 million. Oracle rejected
the remittitur (see ECF No. 1107) and the Court scheduled a new trial. See ECF Nos. 1108, 1190
and 1192. To save the time and expense of this new trial, and to expedite the resolution of the
appeal, the Parties stipulate to entry of judgment in the amount of $306 million, in the proposed
form attached to this Stipulation as Exhibit A, which will be the Court’s final judgment in this
matter (the “Stipulated Judgment”). Oracle contends that but for the limitations established by
the Court’s rulings to date, Oracle’s recovery in a new trial would be greater than $306 million.
2.

The Stipulated Judgment shall constitute Judgment on all claims for relief under

Rule 54(a) of the Federal Rules of Civil Procedure. The Parties reserve all appeal rights from the
Stipulated Judgment, and each and every part thereof, including the right to appeal the Stipulated
Judgment and to seek review of all otherwise reviewable orders, decisions and rulings in this
proceeding, including without limitation: (a) orders entered prior to the November 2010 trial in
this matter; (b) rulings of the Court during the course of the November 2010 trial; (c) the orders
of the Court on Defendants’ motions for judgment as a matter of law and for a new trial following
the November 2010 trial; (d) the orders of the Court on Oracle’s conditional motion for a new
trial following the November 2010 trial; (e) the limitations imposed by the Court with respect to
the new trial currently scheduled to commence on August 27, 2012; and (f) the Stipulated
Judgment. The Parties further reserve the right to seek all appropriate appellate relief, including

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STIPULATION AND PROPOSED FORM OF
JUDGMENT AND ORDER
Case No. 07-CV-1658 PJH (EDL)

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without limitation reinstatement of the original $1.3 billion judgment. The Parties agree that they
each may appeal the Stipulated Judgment, and that nothing in this stipulation or the Stipulated
Judgment waives any right of either party to appeal the Stipulated Judgment, seek review of any
order, decision, or ruling entered in this proceeding, or seek otherwise appropriate appellate relief.
3.

If the Stipulated Judgment is vacated or reversed on appeal, and a new final

judgment is entered and all appeal rights are exhausted (the New Judgment), then if the New
Judgment awards Oracle more than the monetary amount set forth in the Stipulated Judgment,
Oracle may enforce the New Judgment in lieu of the Stipulated Judgment. If, however, the
Stipulated Judgment is vacated or reversed on appeal, and, after all appeal rights are exhausted,
the New Judgment awards Oracle less than the monetary amount set forth in the Stipulated
Judgment, Defendants stipulate to make an additional payment in the amount of $306 million
minus the amount of the New Judgment. Defendants’ promise to pay this difference between the
Stipulated Judgment and a lesser New Judgment is joint and several among all three Defendants.
4.

Oracle may not enforce either the Stipulated Judgment, the New Judgment, or

Defendants’ promise to pay the difference between the Stipulated Judgment and a lesser New
Judgment, until 30 (thirty) days after the conclusion of all proceedings in this case, including any
appeal(s) (including discretionary review by certiorari in the United States Supreme Court, if any)
and new trial(s). No Defendant shall be required to post a supersedeas bond or provide other
form of security to prevent enforcement during that time. The Parties intend Defendants’ promise
to pay the difference between the Stipulated Judgment and a lesser New Judgment to be
enforceable under California contract law, and that promise is made in consideration of Oracle’s
agreement to these stipulated terms (including Oracle’s compromise of its claim for lost and
infringer’s profits and its agreement that Defendants need not provide security to prevent
enforcement of a judgment pending post-trial motions and appeals). For purposes of enforcing
the contractual obligations under paragraphs three and four, Oracle and Defendants submit to
jurisdiction and venue in the United States District Court for the Northern District of California .

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STIPULATION AND PROPOSED FORM OF
JUDGMENT AND ORDER
Case No. 07-CV-1658 PJH (EDL)

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IT IS SO STIPULATED AND AGREED.

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Dated: August 2, 2012

JONES DAY

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By:
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/s/ Tharan Gregory Lanier
Tharan Gregory Lanier
Attorneys for Defendants
SAP AG, SAP AMERICA, INC., and
TOMORROWNOW, INC.

In accordance with General Order No. 45, Rule X, the above signatory attests that
concurrence in the filing of this document has been obtained from the signatory below.

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Dated: August 2, 2012

BINGHAM McCUTCHEN LLP

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By:
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/s/ Geoffrey M. Howard
Geoffrey M. Howard
Attorneys for Plaintiffs
Oracle USA, Inc., Oracle International
Corporation, and Siebel Systems, Inc.

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PROPOSED ORDER

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Based on the parties’ stipulation, and good cause being shown, IT IS SO ORDERED. The
Clerk of the Court is directed to enter the proposed form of judgment attached as Exhibit A as the
Court’s final judgment in this matter. All other existing dates and deadlines in this matter,
including the August 27 trial date, are hereby vacated.

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IT IS SO ORDERED

D

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Judge Ph

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amilton

yllis J. H

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IT IS
Judge SPhyllis J. Hamilton
United Stated District Judge
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By:

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, 2012

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Dated:

August 3

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STIPULATION AND PROPOSED FORM OF
JUDGMENT AND ORDER
Case No. 07-CV-1658 PJH (EDL)

EXHIBIT A

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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.,

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

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Plaintiffs,

AMENDED JUDGMENT

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v.
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SAP AG, et al.,
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Defendants.
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Pursuant to the Parties’ Stipulation, Proposed Form of Judgment and Proposed Order

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(filed August 2, 2012), Amended Trial Stipulation and Order No. 1 Regarding Liability,

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Dismissal of Claims, Preservation of Defenses, and Objections to Evidence at Trial (Dkt. No.

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965), Additional Trial Stipulation and Order Regarding Claims for Damages and Attorneys Fees

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(Dkt. Nos. 961 and 969), Order Re Motions For Partial Summary Judgment (Dkt. No. 762), Order

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Granting Motion to Dismiss in Part and Denying It in Part (Dkt. No. 224), and Order Granting

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Defendants’ Motion for JMOL, and Motion for New Trial; Order Denying Plaintiffs’ Motion for

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New Trial; Order Partially Vacating Judgment (Dkt. No. 1081), IT IS HEREBY ADJUDGED

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AND ORDERED that:

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(1)

JUDGMENT is entered against Defendant TomorrowNow, Inc. on Plaintiff
Oracle International Corporation’s claim for direct copyright infringement
AMENDED JUDGMENT
Case No. 07-CV-1658 PJH (EDL)

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and against Defendants SAP AG and SAP America, Inc. on Plaintiff Oracle

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International Corporation’s claim for indirect copyright infringement. On

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these claims, Plaintiff Oracle International Corporation shall recover from

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Defendants SAP AG, SAP America, Inc. and TomorrowNow, Inc.

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(“Defendants”), jointly and severally in the amount of 306 million U.S.

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dollars ($306,000,000 (US)),which is the entirety of the relief entered for

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these claims (not including the stipulation negotiated between the Parties

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regarding destruction of infringing materials).
(2)

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Oracle International Corporation, and Siebel Systems, Inc.’s (“Oracle,” and

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together with Defendants, “the Parties”) claims for past and future

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reasonable attorneys’ fees and costs (including investigative costs)

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associated with Oracle’s investigation and prosecution of its claims in this

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case, for which the Parties agreed that Oracle should recover, and has

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already been paid by Defendants, the amount of $120 million

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JUDGMENT is entered against Defendants on Plaintiffs Oracle USA, Inc.,

($120,000,000).
(3)

JUDGMENT is entered for Plaintiffs Oracle USA, Inc., Oracle International
Corporation, and/or Siebel Systems, Inc., and against Defendant
TomorrowNow, Inc. on all liability for all claims, including for violations of
18 U.S.C. §§ 1030(a)(2)(C), (a)(4), (a)(5)(i), (a)(5)(ii), and (a)(5)(iii) (the
Federal Computer Fraud and Abuse Act) and California Penal Code §§
502(c)(2), (c)(3), (c)(6) and (c)(7) (California’s Computer Data Access and
Fraud Act), breach of contract, intentional interference with prospective
economic advantage, negligent interference with prospective economic
advantage, unfair competition, trespass to chattels, unjust
enrichment/restitution, and for an accounting, without separate monetary
damages or monetary relief, including punitive damages, or additional

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

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injunctive relief by way of these claims. The recovery on these claims is

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included in paragraph (2) above and no other damages or injunctive or other

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relief is awarded by way of these claims.

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(4)

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JUDGMENT of dismissal with prejudice is entered as previously stipulated
by the Parties, on all claims of Plaintiffs Oracle USA, Inc., Oracle

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International Corporation, and/or Siebel Systems, Inc. against SAP AG and

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SAP America, Inc., for alleged violations of 18 U.S.C. §§ 1030(a)(2)(C),

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(a)(4), (a)(5)(i), (a)(5)(ii), and (a)(5)(iii) (the Federal Computer Fraud and

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Abuse Act) and California Penal Code §§ 502(c)(2), (c)(3), (c)(6) and (c)(7)

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(California’s Computer Data Access and Fraud Act), breach of contract,

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intentional interference with prospective economic advantage, negligent

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interference with prospective economic advantage, unfair competition,

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trespass to chattels, unjust enrichment/restitution, and for an accounting.

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(5)

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JUDGMENT of dismissal is entered, as previously ordered by the Court, on
all claims brought by Oracle Systems Corporation, J.D. Edwards Europe

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and Oracle EMEA Limited.

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(6)

Except as specified in paragraph (2) above, no costs are awarded.

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Dated:

, 2012

By:
Judge Phyllis J. Hamilton
United Stated District Judge

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