Oracle Corporation et al v. SAP AG et al

Filing 1075

STIPULATION AND ORDER REGARDING DEFENDANTS' MOTION FOR APPROVAL OF SECURITY re 1074 Stipulation, filed by SAP AG, Tomorrownow Inc, SAP America Inc. Signed by Judge Phyllis J. Hamilton on 6/9/11. (nah, COURT STAFF) (Filed on 6/9/2011)

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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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BINGHAM McCUTCHEN LLP
DONN P. PICKETT (SBN 72257)
GEOFFREY M. HOWARD (SBN 157468)
HOLLY A. HOUSE (SBN 136045)
ZACHARY J. ALINDER (SBN 209009)
BREE HANN (SBN 215695)
Three Embarcadero Center
San Francisco, CA 94111-4067
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
BOIES, SCHILLER & FLEXNER LLP
DAVID BOIES (Admitted Pro Hac Vice)
333 Main Street
Armonk, NY 10504
Telephone: [phone]
Facsimile: [phone]
[e-mail]
STEVEN C. HOLTZMAN (SBN 144177)
FRED NORTON (SBN 224725)
1999 Harrison St., Suite 900
Oakland, CA 94612
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
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.

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

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ORACLE USA, INC., et al.,

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Plaintiffs,

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v.

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SAP AG, et al.,

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Defendants.

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Case No. 07-CV-1658 PJH (EDL)
STIPULATION AND [PROPOSED] ORDER
REGARDING DEFENDANTS’ MOTION FOR
APPROVAL OF SECURITY
Date:
June 29, 2011
Time:
9:00 a.m.
Courtroom: 3, 3rd Floor
Judge:
Hon. Phyllis J. Hamilton
STIPULATION AND ORDER RE DEFENDANTS’ MOTION

SVI-94026v1

FOR APPROVAL OF SECURITY
Case No. 07-CV-1658 PJH (EDL)

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STIPULATION RE MOTION FOR APPROVAL OF SECURITY
Defendants SAP AG, SAP America, Inc., and TomorrowNow, Inc. (“Defendants”) and

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

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together with Defendants, the “Parties”) request entry of an order approving a supersedeas bond

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in the amount of $1,325,033,547.00 as appropriate security to stay execution of the final

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judgment entered on February 3, 2011 (ECF No. 1036), pending disposition of post-judgment

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motions and, if necessary, appeal. Defendants reviewed the revisions proposed by Oracle as

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further explained in its Opposition (ECF No. 1072) and have had an opportunity to confer with

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the sureties insuring the bond regarding Oracle’s suggested revisions. Defendants have now

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accepted the revisions proposed by Oracle and proposed one minor addition. The Parties met and

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conferred further, and with these revisions, have reached an agreement on a stipulated bond form,

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which is attached as Exhibit A. Accordingly, the Parties jointly request that the Court approve

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this revised bond form and grant Defendants 10 business days to obtain the necessary signatures

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and file a signed version of this bond form with the Court for final approval. A hearing on the

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Defendants’ Motion is no longer required.

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IT IS SO STIPULATED.
Dated: June 8, 2011

JONES DAY

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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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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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STIPULATION AND ORDER RE DEFENDANTS’ MOTION
SVI-94026v1

-1-

FOR APPROVAL OF SECURITY
Case No. 07-CV-1658 PJH (EDL)

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Dated: June 8, 2011

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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STIPULATION AND ORDER RE DEFENDANTS’ MOTION
SVI-94026v1

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FOR APPROVAL OF SECURITY
Case No. 07-CV-1658 PJH

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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O ORD

IT IS S

ERED

Hon. Phyllis J. Hamilton
United States Districtdge Phyllis J. Judge
Court Hamilton
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By:

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6/9/11
DATED: ________________________

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STIPULATION AND ORDER RE DEFENDANTS’ MOTION
SVI-94026v1

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FOR APPROVAL OF SECURITY
Case No. 07-CV-1658 PJH

EXHIBIT A

UNITED STATES DISTRICT COURT FOR THE Northern District of California,

ORACLE USA, Inc., et al,
Plaintiffs,
v.

SAP AG, et al,
Defendants

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Civil Action No. 07-CV-01658PJH(EDL)

SUPERSEDEAS BOND

KNOW ALL BY THESE PRESENTS, That SAP America, Inc., as principal and on behalf of defendants
SAP AG, SAP America, Inc., and TomorrowNow, Inc. (collectively, “Defendants”), and Continental
Casualty Company and U.S. Specialty Insurance Company and American Contractors Indemnity
Company and Travelers Casualty and Surety Company of America and XL Specialty Insurance Company
and XL Reinsurance America, Inc. and Greenwich Insurance Company and Fidelity and Deposit
Company of Maryland and Zurich American Insurance Company and Liberty Mutual Insurance Company,
as sureties, (hereinafter collectively and individually called “Surety”) are held and firmly bound unto
Oracle International Corporation, its successors and assignees (“Oracle”), in the total aggregate sum of
One Billion Three Hundred Twenty Five Million Thirty Three Thousand Five Hundred Forty Seven AND
00/100THS -----------------($1,325,033,547.00) DOLLARS, lawful money of the United States to be paid to
Oracle for which payment well and truly to be made, we bind ourselves and our heirs, executors,
administrators, successors and assigns, severally by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH THAT:
WHEREAS, judgment was entered on February 3, 2011 in favor of Oracle and against Defendants in the
amount of $1,314,751,797.00,
WHEREAS, Defendants filed post-judgment motions, and if denied, will appeal the judgment.
NOW, THEREFORE, the condition of this obligation is such that this obligation shall be void if Defendants
prosecute their post-judgment motions and/or any subsequent appeals to the Ninth Circuit Court of
Appeals and/or the United States Supreme Court and either (a) Defendants satisfy said judgment in full
together with costs, interest and damages for delay if for any reason the motions are not granted and the
appeal is dismissed or if the judgment is affirmed; or (b) Defendants satisfy in full such modification of the
judgment and such costs, interest and damages as the United States District Court for the Northern
District of California, the Ninth Circuit Court of Appeals and/or the United States Supreme Court may
adjudge and award. Otherwise then this obligation shall remain in full force and effect.
PROVIDED, HOWEVER, THAT:
1. The maximum amount of liability for each Surety shall be limited to the following amounts:
Continental Casualty Company, a Illinois corporation, for One Hundred Fifty Million and 00/100 Dollars
($150,000,000.00) - (.113) percent)
U.S. Specialty Insurance Company, a Texas corporation, for Forty Million and 00/100 Dollars
($40,000,000.00) - (.03) percent

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American Contractors Indemnity Company, a California corporation, for Five Million and 00/100
Dollars ($5,000,000.00) - (.0037) percent
Travelers Casualty and Surety Company of America, a Connecticut corporation, for One Hundred
Million and 00/100 Dollars ($100,000,000.00) - (.0755) percent
XL Specialty Insurance Company, a Delaware corporation, for Fifteen Million and 00/100 Dollars
($15,000,000.00) - (.0113) percent
XL Reinsurance America, Inc., a New York corporation, for One Hundred Fifty Five Million and 00/100
Dollars ($155,000,000.00) - (.117) percent
Greenwich Insurance Company, a Delaware corporation, for Thirty Million and 00/100 Dollars
($30,000,000.00) - (.023) percent
Fidelity and Deposit Company of Maryland, a Maryland corporation, for Ten Million and 00/100 Dollars
($ 10,000,000.00)) - (.0075) percent
Zurich American Insurance Company, a New York corporation, for Five Hundred Seventy Million Thirty
Three Thousand Five Hundred Forty Seven and 00/100 Dollars ($ 570,033,547.00) - (.43) percent
Liberty Mutual Insurance Company, a Massachusetts corporation, for Two Hundred Fifty Million and
00/100 Dollars ($250,000,000.00) - (.189) percent

2. It is expressly provided that the obligation of the Surety shall be several and not joint, and no Surety
shall be responsible in an amount greater than their respective maximum amount of liability set forth
above in paragraph 1. Nor shall any Surety’s liability be increased or affected hereunder in any way
whatsoever as a result of the performance or non-performance by any other Surety of such other Surety’s
obligation under this Bond.
3. Any claim for payment by Oracle arising under this bond shall be allocated to the percentage of each
Surety’s limit of liability relative to the aggregate amount of this bond.
4. In no event shall the total obligation of the Surety hereunder exceed the amount herein stated,
regardless of the number of years this bond is in force.
5. This Bond may be executed in any number of counterparts, and by the different parties hereto on
separate counterparts, each of which counterpart shall be an original, but all of which shall together
constitute one and the same instrument.
6. Pursuant to Rule 8(b) of the Federal Rules of Appellate Procedure and Rule 65.1 of the Federal
Rules of Procedure, see Surety List above, each surety, submits itself to the jurisdiction of the District
Court.
IT IS FURTHER AGREED by each Surety that it meets the qualification requirements of Civil L.R. 65.11(b) and that, in the event that the Surety defaults or refuses to obey any court order requiring payment,
the Court may, upon notice to the Surety of not less than ten business days, proceed summarily and
render judgment against the Surety in accordance with its obligation and award execution thereon.
SIGNED AND SEALED this ___ day of ___ , 2011.

Principal: SAP America, Inc.

By:_____________________________________

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SURETY

BOND NUMBERS

Continental Casualty Company
By:____________________________________
Wayne G. McVaugh, Attorney-In-Fact

Bond Number: 929513010

U.S. Specialty Insurance Company
By:____________________________________
Wayne G. McVaugh, Attorney-In-Fact

Bond Number: 1000831469

American Contractors Indemnity Company

Bond Number: 1000831469
(same as US Spec Ins Co)

By:__________________________________
Wayne G. McVaugh, Attorney-in-Fact

Travelers Casualty and Surety Company of America

Bond Number: 105596398

By:___________________________________
Wayne G. McVaugh, Attorney-in-Fact

XL Specialty Insurance Company

Bond Number: SUR7401260

By:___________________________________
Wayne G. McVaugh, Attorney-in-Fact

XL Reinsurance America, Inc.

Bond Number: SUR7401260
(same as XL Spec Ins Co.)

By:___________________________________
Wayne G. McVaugh, Attorney-in-Fact

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SURETY

BOND NUMBERS

Greenwich Insurance Company

Bond Number: SUR7401260
(same as XL Spec Ins Co.)

By:______________________________
Wayne G. McVaugh, Attorney-in-Fact

Fidelity and Deposit Company of Maryland

Bond Number: CGB09036098

By:______________________________
Wayne G. McVaugh, Attorney-in-Fact

Zurich American Insurance Company

Bond Number: CGB09036098
(same as F&D Co of MD)

By:________________________________
Wayne G. McVaugh, Attorney-in-Fact

Liberty Mutual Insurance Company

Bond Number: 019032909

By:________________________________
Wayne G. McVaugh, Attorney-in-Fact

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Written notice of claim on this surety bond shall be sent to the following:

Continental Casualty Company
c/o CNA Surety Companies
VP Surety Claims
333 S. Wabash Ave, 41st Fl.
Chicago, IL 60604
HCC Insurance Holdings Inc. – (for us. Spec. Ins. Co. and Amer Contractors Indem Co.)
Surety Claims Dept.
601 S. Figueroa, 16th Fl.
Los Angeles, CA 90017
Travelers Casualty and Surety Company of America
Commercial Surety Claims
One Tower Square
Hartford, CT 06183
Zurich Commercial Surety Bond Claims - (for Fidelity & Deposit Co MD and Zurich Amer Ins Co)
Attn: Dennis Hayden
1400 Avenue Lane
PO Box 968036
Schaumburg, IL 60196
Surety Claim Dept.
Liberty Mutual Surety
450 Plymouth Rd, Suite 400
Plymouth Meeting, PA 19462
XL Specialty Insurance Company – (also for XL Reins Amer, Inc .and Greenwich Ins Co)
Attn: Surety Claim Dept.
300 East Lombard St., Ste 1470
Baltimore, MD 21202

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