|
By Pam Fulmer
Your company receives a letter from Oracle’s License Management Services. It is politely worded but unmistakably serious. Oracle is exercising its contractual audit rights and would like your organization to cooperate in a review of your software deployments. For many companies, the instinct at this moment is to cooperate fully, correct any genuine issues, and resolve the matter quickly. That instinct, while understandable, is exactly what Oracle is counting on. What follows the audit letter is not a neutral compliance review. It is the opening move in a carefully engineered revenue strategy that Oracle’s own employees have described in federal court filings as “Audit, Bargain, Close” — or ABC. Understanding how this strategy works, what rights you actually have, and how experienced legal counsel can level the playing field is the difference between a six-figure settlement on your terms and an eight-figure capitulation on Oracle’s. The “Audit, Bargain, Close” Strategy: What We Know from Court Records The term “Audit, Bargain, Close” did not originate with Oracle’s critics. It originated inside Oracle itself. In a class action securities lawsuit against Oracle, a consolidated complaint alleged, based on statements from nine former Oracle employees identified with specificity, that Oracle systematically used coercive audit practices to manufacture cloud subscription revenue. “The sales team would identify large clients they thought they could get more money out of and threaten them with audits… frequently, neither sales nor LMS had real evidence that customers targeted for audits were noncompliant, but the mere threat of an audit would put customers under so much pressure that they had no choice but to agree to Oracle’s demands.” — Former Oracle Employee, Federal Court Filing This is not a fringe allegation. The complaint describes in granular detail a system in which Oracle’s License Management Services (LMS) also know as Global License Advisory Services (GLAS) — the internal audit arm — and Oracle’s sales division operated in close coordination, with sales identifying audit targets and, in some cases, drafting the threatening audit letters that LMS then sent to customers. A federal court allowed the case to proceed on a narrow securities fraud theory, finding the allegations legally sufficient to state a plausible claim. The three phases of the strategy, along with what your company should do, break down as follows: AUDIT Sales/LMS identify target accounts — often with no real evidence of non-compliance. Soft audit inquiry or formal LMS letter sent. Do not respond informally. Retain legal counsel immediately. Channel all communications through a single designated contact. BARGAIN Oracle presents inflated "shock number" compliance gap, then offers a "discount" if you purchase cloud subscriptions or a ULA. Challenge the methodology. Independently verify all findings. Do not accept Oracle's numbers without scrutiny — they are frequently overstated. CLOSE Oracle leverages quarter-end deadlines and fear of copyright litigation to pressure a fast settlement on its terms. Understand Oracle's fiscal calendar. Deadlines are artificial. A settlement built around your legal position is far stronger than one built around Oracle's timeline. The result: customers who should never have faced a compliance bill pay millions. And Oracle books it as cloud revenue growth. Five Oracle Audit Tactics Your Legal Team Needs to Know 1. The “Soft Audit” Disguised as a Friendly Review Not all Oracle audit pressure arrives with a formal LMS letter. Oracle also deploys what the industry calls “soft audits” — informal outreach from Oracle sales representatives framed as a complimentary license review, a compliance health check, or even an account management call. This is what is going on when you get a call from Oracle about your Java SE deployments. In practice, an informal review carries no contractual audit protections for the customer. There are no defined timelines, no scope limitations, and no formal dispute rights. Customers who participate under the impression that they have “nothing to hide” frequently discover that Oracle’s sales team has collected enough data to generate a large compliance claim — and a cloud subscription proposal to resolve it. Legal note: You are not obligated to cooperate with an informal Oracle review. Only a formal audit notice from Oracle’s LMS or legal counsel invokes your contractual audit obligations. Treat any Oracle compliance outreach as potentially adversarial until you have reviewed your contract and consulted counsel. 2. The “Shock Number”: How Oracle Builds Its Opening Position When Oracle’s LMS presents audit findings, the initial compliance gap figure is almost always dramatically overstated. This is not an accident. Oracle’s auditors appear to be incentivized to identify maximum potential exposure, and they routinely rely on non-contractual policies — particularly the Oracle Partitioning Policy governing VMware virtualization — as if those policies were binding contractual terms. The Oracle Partitioning Policy states that Oracle software running in a VMware environment must be licensed for every physical processor core in the entire cluster, not just the hosts where Oracle is actually deployed. This policy is not part of Oracle’s standard Master License Agreement. It is a unilaterally published document that explicitly states it “may not be incorporated into any contract” and is subject to change without notice. Yet Oracle’s auditors apply it as if customers agreed to it. The practical effect: a company running Oracle database on three hosts in a forty-host VMware cluster may receive an audit claim demanding licenses for all forty hosts. The shock number exists to make the eventual settlement — which might only cover the three actual hosts — feel like a victory for the customer, even if the customer overpays relative to its genuine contractual obligations. Legal note: Oracle’s non-contractual policies cannot expand your license obligations beyond what your actual signed agreements require. A detailed legal analysis of your specific Oracle contracts is essential before responding to any audit findings. 3. Java SE: The New Enforcement Frontier Oracle’s Java enforcement activity represents one of the most significant changes in the enterprise software audit landscape since 2023. Following Oracle’s shift to a per-employee Java SE subscription model, Oracle launched an aggressive global campaign to identify organizations using Oracle’s Java Development Kit without the required commercial subscription. Oracle tracks Java downloads by matching IP addresses to organizations. Companies are being contacted for Java compliance regardless of whether they have any other Oracle products. Gartner has projected that by 2026, at least one in five organizations using Java will face an Oracle audit. Oracle has been targeting companies with as few as fifty employees purely over Java usage, and the pricing model — applied per employee across the entire organization regardless of actual Java use — can produce cost increases exceeding 800 percent compared to prior licensing structures. Java audits follow the same ABC pattern. The soft audit begins with an inquiry from Oracle’s Java sales team, often referencing Oracle’s download records as evidence of non-compliance. Or the Oracle team says that they are there to help you ensure that your data is secure. Organizations that respond without counsel frequently provide far more information than their contracts require, which Oracle then uses to build a large non-compliance claim. Legal note: Oracle’s per-employee Java pricing model has been challenged as an overreach relative to actual usage. Companies may have grounds to contest both the scope of Oracle’s audit claims and the retroactive fee demands that frequently accompany them. 4. The Quarter-End Close Pressure Oracle’s fiscal year ends on May 31. Its quarterly deadlines follow the standard calendar. Oracle’s audit and sales teams know this calendar intimately, and they use it deliberately. As Oracle approaches a quarter-end, the pressure on audit targets intensifies. Proposals that were presented as final become “special offers” with deadline language. Sales teams become more accessible. Discounts appear. The implicit message is that the deal available today will not be available next week. These deadlines are artificial. Oracle’s contractual audit rights do not expire at quarter-end. The “deal” usually does not evaporate but comes back the next quarter and is often better. What Oracle is doing is leveraging its own internal sales cycle against you — creating urgency that has no legal foundation but enormous psychological effect on companies that are not prepared for it. Legal note: Any settlement offer involving Oracle cloud subscriptions, Unlimited License Agreements, or license true-ups should be reviewed carefully by experienced licensing counsel before signature. Settlements signed under artificial deadline pressure often contain terms that create new and expensive obligations for years afterward. 5. Default-Enabled Features: The Trap Oracle Installs for You Court filings in Oracle related litigation include an allegation: that Oracle configured its on-premises software products to automatically install additional options and management packs in an enabled state, without informing customers that these features were active or that using them required additional licenses. Once a customer was found “using” these features — even unknowingly — Oracle’s LMS had a basis for a compliance claim. This pattern is most prevalent with Oracle Database Enterprise Edition, which ships with a wide range of options — Partitioning, Advanced Security, Diagnostics Pack, Tuning Pack, and others — that require separate licenses. Database administrators frequently enable features or run queries that inadvertently activate options. Oracle’s LMS audit scripts are designed to identify these activations, which Oracle treats as evidence of unlicensed use regardless of whether the customer had any knowledge or intent. Legal note: Unintentional feature activation is a common and frequently challenged basis for Oracle audit claims. The fact that a feature was activated does not necessarily mean a license was required or that the customer is liable for retroactive fees. These findings are defensible with the right technical and legal analysis. Oracle Is Not Alone: Quest Software and the Growing Audit Threat Oracle is the most prominent practitioner of aggressive software audit tactics, but it is not the only one. Quest Software — which makes widely-used database tools including Toad, Spotlight, and a range of products that manage Oracle and SQL Server environments — has adopted audit strategies that closely mirror Oracle’s playbook. Quest’s audit activity frequently targets organizations that use Quest tools in virtualized environments or across shared infrastructure, asserting broad license obligations based on deployment configurations that customers did not understand to trigger additional license requirements. Quest, like Oracle, tends to present inflated initial findings and then offer to resolve the matter through subscription upgrades or expanded license purchases. What Oracle Doesn’t Want You to Know: Your Contractual Rights Oracle’s audit process is designed to feel inevitable and one-sided. It is neither. Your Oracle Master Agreement contains specific provisions that define and limit Oracle’s audit rights, and those provisions exist to protect you. Key rights that companies frequently overlook include:
One of the most important things you can do in an Oracle audit is to understand what you agreed to — not what Oracle says you agreed to. Those are frequently very different things. What to Do Before Oracle Comes Knocking: A Practical Framework Before the Audit Letter: Proactive Steps
When the Letter Arrives: Immediate Response
During Negotiations: Protecting Your Position
The Bottom Line: Knowledge Is the Most Powerful Audit Defense Oracle’s “Audit, Bargain, Close” strategy works because most organizations are unprepared for it. They do not know what their contracts say. They do not understand that Oracle’s non-contractual policies are not legally binding. They do not realize that the shock number is designed to be challenged. They respond to artificial urgency with real concessions. The companies that fare best in Oracle audits — and in the audits conducted by Quest, IBM, Microsoft, and other aggressive publishers — share a common characteristic: they treat the audit as a legal matter from the first contact, not from the moment they have already provided the publisher with everything it needs to build its case. Our firm has represented companies across a wide range of industries in Oracle and other audit defense, Oracle and NetSuite ERP litigation, and disputes with other enterprise software publishers. We understand these audit playbooks in depth — including the contractual arguments that work, the technical defenses that matter, and the negotiating strategies that achieve real outcomes. If your organization has received an Oracle audit letter or an informal inquiry about Java — or if you want to understand your exposure before one arrives — we invite you to contact us for a confidential consultation.
0 Comments
By Pam Fulmer Failed ERP implementations are often described as “project problems.” Oracle reinforces this framing, pointing to implementation partners, change management challenges, or customer indecision. That narrative is convenient—and misleading. In many NetSuite SuiteSuccess or Oracle Fusion disputes, the root cause of failure is not poor execution. It is how Oracle sells ERP systems in the first place. The sales model itself creates predictable legal and operational risk, long before the first data is migrated. Understanding that model is critical for executives and in-house counsel assessing litigation risks and rewards, contract termination scenarios, or settlement strategy with Oracle. This blog post is based on a review of actual litigation filed against Oracle involving its ERP software and failed ERP implementations to demonstrate Oracle’s playbook and identify common themes across the disputes. Oracle Sells Certainty—While Structurally Avoiding Accountability Oracle’s ERP sales strategy is built around a fundamental tension:
After contract execution, and once disputes arise, Oracle abruptly changes its posture. Oracle claims it merely licensed the software and points to implementation partners as the reason for the failures. Then Oracle relies on contractual disclaimers in its Subscription Services Agreement (“SSA”) to attempt to avoid responsibility. Many customers are unaware of the SSA, which is the governing agreement because it is buried in a disguised and grayed out hyperlink on the Estimate Form. This structural disconnect is not incidental—it is the core of many ERP disputes. The Modular Sales Trap: Selling Pieces as a “Solution” Oracle sells ERP systems as bundled modules, while contractually treating each module as an isolated product. From a business perspective, customers are told the modules work together seamlessly, the configuration supports their industry, and the ERP will deliver defined operational outcomes. Once a dispute arises and from a legal perspective, Oracle later argues that each module stands alone and that the integration risk belongs to the customer and the customer was solely responsible in determining whether the solution is fit for its business. When the combined system does not function as promised, Oracle characterizes the failure as implementation error rather than solution design failure, even when Oracle itself selected the architecture. SuiteSuccess: Speed as a Sales Weapon, Not a Delivery Reality SuiteSuccess is Oracle’s most aggressive example of sales-driven risk. It is marketed as:
The Partner Buffer: Shifting Risk Without Reducing It It appears that Oracle’s heavy reliance on implementation partners is not merely operational—it is strategic. Partners allow Oracle to:
However, in many disputes Oracle selected or strongly influenced the choice of partner and relied on partner participation to close the deal during the sales cycle. But once the deal closed and problems arise, Oracle disclaims all responsibility for the partner’s performance. This creates a risk vacuum, where Oracle controls the sale, the partner controls execution, and the customer bears the consequences when the system fails. Information Asymmetry: Oracle Knows More Than It Tells One of the most overlooked aspects of Oracle ERP disputes is information asymmetry. Oracle typically knows how often similar implementations fail and which configurations break down. Oracle also has knowledge of which modules are immature or unstable and how dependent success is on customization. Customers do not know these things and rely on Oracle’s greater expertise and knowledge. When Oracle sells ERP solutions without disclosing known risks—or affirmatively minimizes them—it creates fertile ground for claims based on misrepresentation and concealment. ERP litigation often turns on what Oracle knew, when it knew it, and how much of that information was withheld during the sales cycle. Why These Disputes Are Predictable—and Repeatable The same patterns appear across publicly filed Oracle NetSuite and Fusion disputes:
What Executives and In-House Counsel Should Take From This When an Oracle ERP fails, the most important question is not: “What went wrong during implementation?” It is: “Was this system ever realistically capable of delivering what Oracle sold?” That question reframes the dispute from project management to sales conduct, risk disclosure, and solution viability—where Oracle is far more exposed. The Bottom Line Oracle ERP failures are often not execution mistakes. They are sales-driven failures, rooted in a business model that appears based on the filed cases to separate promise from accountability. For companies facing NetSuite or Oracle Fusion disputes, recognizing this reality early can fundamentally change:
By the time an ERP fails in production—or never reaches go-live—the legal issues are already baked in. They were created during the sales cycle, not the implementation phase. Companies that understand Oracle’s sales model are far better positioned to challenge Oracle’s defenses—and to avoid funding a failed ERP indefinitely. During the sales cycle it is important to document Oracle’s promises in emails and other communications. Oracle’s playbook of setting up Zoom calls to do the scoping and requirements gathering often does not leave a paper trail. Oracle customers must create one, and they must preserve carefully these pre-contract communications made by Oracle during the sales cycle. Our attorneys advise clients on strategies to resolve disputes with Oracle and its partners when a NetSuite SuiteSucces or Oracle Fusion project goes off the rails. Oracle Java Licensing Enforcement: How “Friendly Outreach” Is Driving Significant Compliance Risk1/21/2026 By Pam Fulmer
Across industries, companies are increasingly reporting a common pattern in Oracle’s approach to Java licensing. What often begins as a polite, informal inquiry about Java usage can quickly escalate into a high-dollar compliance demand—sometimes reaching into the millions of dollars—followed by pressure to purchase enterprise-wide Java subscriptions. Often in house counsel is not even aware that Oracle has reached out to various IT personnel. They only become aware when a multi-million dollar licensing demand is escalated to the legal department. And then much of the damage has already been done. Oracle is able to identify organizations that have downloaded or deployed Java. An Oracle Java team member initiates contact under the guise of a routine security or licensing discussion, and then leverages information voluntarily provided by the company to assert noncompliance. The risk is compounded by Oracle’s revised Java subscription model, which can dramatically increase licensing exposure based on employee headcount rather than actual Java usage. This article explains what is happening in the Java licensing marketplace, why so many companies are caught off guard, and what organizations should do now to reduce risk before Oracle comes calling. And if Oracle is already on your door step, our law firm assists companies in resolving disputes with Oracle over Java. Oracle’s Shift From Traditional Audits to “Soft” Java Enforcement Historically, software compliance disputes began with a formal audit letter invoking contractual audit rights. Oracle’s current Java enforcement model looks very different. Many organizations now report receiving:
Once Oracle receives deployment information, the engagement often escalates quickly—sometimes moving from a casual inquiry to a significant financial claim within days or weeks. How Oracle Identifies Java Users A common misconception is that only companies with existing Oracle contracts are exposed to Java audits. In reality, Oracle’s Java licensing enforcement extends well beyond traditional Oracle customers. Oracle has visibility into Java activity through various touchpoints, including downloads obtained through Oracle-controlled distribution channels. When Java is downloaded using identifiable credentials or corporate domains, Oracle can associate that activity with a specific organization. This is why companies that believe they “do not use Oracle software” or “have never purchased Java” are often surprised to receive settlement demands from Oracle. From Oracle’s perspective, download activity alone may be sufficient to justify initiating a licensing discussion. Why the First Response Matters More Than Companies Realize When Oracle contacts an organization about Java, it typically requests information such as:
The problem is not simply whether the information is accurate. It is that:
Why Java Compliance Exposure Escalates So Quickly A. Java Is Embedded Throughout Enterprise IT Environments Java appears in far more places than most companies expect, including:
B. Oracle’s Java Subscription Model Multiplies Cost Oracle’s current Java licensing framework is subscription-based. In recent years, Oracle has emphasized pricing models that can be tied to total employee headcount rather than actual Java installations. For many organizations, this creates a severe mismatch between usage and cost:
C. Ongoing Confusion About “Free Java” Despite years of changes to Java licensing, confusion remains widespread. Many companies assume:
Oracle’s Leverage Strategy in Java Licensing Disputes IIn practice, Oracle’s Java enforcement approach often follows a consistent pattern:
What Companies Are Doing in Response As Java enforcement has intensified, organizations are increasingly reassessing their Java strategies. Common responses in the marketplace include:
Practical Steps to Reduce Java Audit and Licensing Risk Before Oracle Contacts You Proactive planning significantly reduces exposure.
If Oracle Has Already Reached Out The first response often determines the trajectory of the engagement.
Conclusion Oracle’s Java licensing enforcement is no longer passive or occasional. It is systematic, data-driven, and increasingly detached from traditional audit formalities. Organizations that assume Java is low risk—or that a friendly email requires a friendly response—are often caught unprepared. Companies that take proactive steps to understand their Java footprint, control deployments, and manage communications are far better positioned to avoid coercive licensing outcomes and unnecessary enterprise-wide subscriptions. However, if your company has already been contacted by Oracle or has shared Java related data with Oracle, then it is time to retain experienced outside counsel to assist the company in resolving the dispute. Tactical Law has assisted multiple clients to resolve Java licensing disputes with Oracle. By Pam Fulmer
A new class action filed in the Western District of Texas alleges that GlobalLogic Inc. and Oracle Corporation failed to protect highly sensitive personal information associated with GlobalLogic’s workforce. The complaint, brought by a former GlobalLogic employee, ties the incident to a zero‑day vulnerability that affected Oracle E‑Business Suite (EBS), and it raises significant questions for organizations that run HR, payroll, and finance on Oracle’s flagship ERP platform. A "zero day" (also written as "0-day") refers to a previously unknown software vulnerability that is discovered and exploited by attackers before the software vendor becomes aware of it and has a chance to develop and release a fix or patch. The term "zero day" comes from the fact that the vendor has had zero days to address and remediate the vulnerability. Below is a concise overview of the allegations, the Oracle software at issue, the timeline, and potential implications for Oracle and its customers. Who the parties are and where the case was filed
What Oracle software is involved? The complaint squarely focuses on Oracle E‑Business Suite. GlobalLogic allegedly “uses Oracle E-Business Suite, a collection of applications, to manage core business functions such as finance, HR, accounts payable and receivable.” (p. 2) The plaintiff alleges Oracle issued a security advisory on October 4, 2025 concerning a previously unknown zero‑day exploit, that GlobalLogic determined its Oracle instance was exploited, and that the exfiltrated data came from the Oracle platform hosting HR information. (p. 7) Based on GlobalLogic’s description, the exposed HR data could include names, contact details, dates of birth, nationality and passport information, employee identifiers, SSNs or other national identifiers, salary data, and bank account and routing numbers. (p. 8) For EBS customers, this underscores the sensitivity of the data commonly centralized in HR/payroll modules. The alleged timeline
Alleged harms and risks The plaintiff claims actual misuse (a ~$520 fraudulent debit card charge in or around September 2025), increased spam/scam outreach, and ongoing time and anxiety related to monitoring. (p. 11) The complaint emphasizes continuing risks of identity theft given the breadth of HR data allegedly accessed and notes that the breach notice advised vigilance, fraud alerts, and potential contact with the FTC and law enforcement. (p. 9) Theories of liability The complaint pleads six causes of action:
Requested relief includes class certification, damages (including punitive where available), restitution/disgorgement, injunctive and declaratory relief, fees, and interest. (p. 34) What this could mean for Oracle
Implications and practical steps for Oracle EBS customers Given the alleged vector and data at issue, organizations running EBS for HR and finance should consider the following steps:
What to watch procedurally Defendants will likely contest class certification and move to dismiss certain claims, particularly around the existence and scope of duties, causation, and damages, and whether Oracle, as a platform vendor, owed duties directly to GlobalLogic’s employees. Expect factual disputes over controls in place, detection/notification timelines, and the extent of any misuse. The court’s treatment of duty and causation in a shared‑responsibility context will be closely watched by Oracle customers and other ERP platform users. Bottom line Brown v. GlobalLogic and Oracle places Oracle E‑Business Suite at the center of a high‑stakes data breach class action and highlights the operational and legal risks when zero‑days intersect with platforms that centralize highly sensitive employee data. Regardless of outcome, the allegations provide a timely reminder to EBS customers to tighten zero‑day preparedness, harden identity and access, monitor for exfiltration, streamline notification workflows, and clarify vendor/customer responsibilities. By Pam Fulmer
A new putative class action filed in the Northern District of California alleges that Adobe deceives consumers into year-long, automatically renewing “annual, billed monthly” plans, obscures material terms and early termination fees in fine print and hyperlinks, and makes cancellation unduly difficult. The complaint also challenges Adobe’s dispute-resolution scheme, alleging the company refuses to pay arbitration fees and then forces consumers into small-claims court, depriving them of meaningful remedies. The suit seeks damages, restitution, injunctive relief, and a declaration that Adobe’s small-claims provision is unenforceable. What the case is about • The core allegation: Adobe prominently advertises per month pricing but defaults consumers into “annual, billed monthly” (ABM) commitments, while failing to clearly disclose that the plan auto renews and carries a steep early termination fee equal to 50% of remaining monthly payments if canceled within the first year. The complaint says these key terms are relegated to fine print and a web of hyperlinks rather than clearly and conspicuously presented at checkout. • Cancellation obstacles: Plaintiffs allege Adobe’s online cancellation flow requires navigating multiple screens, prompts, and sometimes live-agent interactions, with “offers” to deter cancellation; at times, online cancellation may be disabled, pushing consumers to other channels. • Dispute resolution concerns: According to the complaint, Adobe requires a pre arbitration “informal” process, designates JAMS arbitration, but then refuses to pay JAMS fees and invokes a “small claims election” to shut down arbitration—effectively routing consumers to small claims court where counsel, discovery, and appeal are limited or unavailable. Why this matters: fairness and full disclosure At bottom, the case is about transparency. Subscription sellers must clearly and conspicuously disclose auto renewal terms, obtain affirmative consent, and provide easy, immediate online cancellation. Consumers should not be surprised by hidden minimum commitments, opaque renewal mechanics, or penalty fees buried in small type or behind hyperlinks. While Adobe is the defendant here, the industry at large should take note—companies like Oracle have also been criticized by customers and commentators for burying impactful terms behind inconspicuous hyperlinks. Clear, front and center disclosures and frictionless cancellation build trust, reduce disputes, and align with modern statutory requirements and regulator expectations. Summary of the claims pled The complaint asserts California consumer protection causes of action and seeks declaratory relief: • Declaratory judgment: A declaration that Adobe’s “small claims” provision is unconscionable and unenforceable; that Adobe has breached or waived any agreement to arbitrate by refusing to pay required arbitration fees; and that its terms do not constitute a valid FAA arbitration agreement as used. • California Consumer Legal Remedies Act (CLRA): For alleged misrepresentations and omissions regarding subscription characteristics and cancellation terms; advertising without intent to sell as advertised; representing rights/obligations that differ from reality; and inserting unconscionable terms. • False Advertising Law (FAL): For allegedly untrue or misleading statements by commission and omission regarding pricing, plan nature (monthly vs. annual commitment), renewal, and cancellation penalties. • Unfair Competition Law (UCL): “Unlawful,” “unfair,” and “fraudulent” prongs based on the same conduct, including alleged violations of the ARL, CLRA, and FAL; seeks restitution, disgorgement, and injunctive relief to stop deceptive designs and mandate clear disclosures. • Automatic Renewal Law (ARL) violations as the predicate: Plaintiffs allege Adobe failed to present auto renewal terms “clearly and conspicuously,” failed to obtain affirmative consent, failed to provide a retention capable acknowledgment with cancellation methods, misrepresented material facts, and failed to allow “online, at will” termination via a prominent link or immediate termination email—all resulting in unlawful charges and remedies including restitution. Alleged practices highlighted in the complaint • “Annual, billed monthly” default and fee disclosure: The ABM plan’s monthly price is emphasized visually; the annual commitment and 50% early termination fee are not clearly called out in proximity to consent, according to plaintiffs. The complaint details screens where fine print is minimized or pushed below the fold, and where the “Terms of Use” and “Subscription and Cancellation Terms” hyperlinks appear only at the final payment stage after personal and billing information is entered. • Early termination fee: For ABM plans, canceling in the first year triggers a fee equal to 50% of remaining monthly payments—allegedly a material term not disclosed clearly and conspicuously during enrollment. • “Cancel anytime” ambiguity: Plaintiffs say “cancel anytime” messaging conflicts with fee deadlines and limited refund windows, confusing consumers about real cancellation rights. • Obstacles to cancellation: Multi page flows, prompts, and occasional forced customer support interactions; sometimes online cancellation is unavailable (e.g., during payment processing issues), contrary to ARL’s “online, at will” mandate, plaintiffs allege. • Arbitration/Small claims pivot: The complaint asserts Adobe refused to pay JAMS’ fees after demands were filed and invoked a small claims election to administratively close arbitrations—then argued consumers must proceed in small claims court, which cannot award the injunctive relief sought under the UCL, FAL, and CLRA. Relief sought Plaintiffs seek class certification; damages; restitution and disgorgement; declaratory relief regarding the dispute-resolution terms; civil penalties; injunctive orders to cure disclosures and cancellation flows; and fees and costs. Nature of the class action proceeding The complaint seeks certification of a nationwide class of all natural persons in the United States who paid for Adobe subscriptions during the applicable limitations period. Plaintiffs allege common questions predominate—such as whether Adobe’s presentation of auto renewal terms was clear and conspicuous, whether affirmative consent was obtained, whether disclosures and cancellation methods satisfied the ARL, and whether marketing and UX choices were misleading or unfair. They contend a class action is the superior method to resolve uniform design and disclosure practices, given relatively modest per consumer losses and the burdens of individual litigation. Takeaways for businesses and consumers • Put critical terms up front: If a plan is annual with monthly billing, say so conspicuously at every relevant step, alongside any early termination fee and renewal mechanics. • Obtain clear consent: Secure express, unambiguous assent to auto renewal terms; don’t bury consent in small print or optional hyperlinks late in checkout. • Make cancellation immediate and online: Provide a prominent “Cancel” link or button and allow immediate termination without friction or delays, consistent with modern statutory standards. • Design for trust: Hidden hyperlinks, fine print traps, or obstructive flows draw litigation and regulatory scrutiny. Companies across the software and cloud ecosystem—including those, like Oracle, that have faced criticism for concealing impactful terms in nested links—should embrace transparent, consumer centric UX and disclosures. Conclusion The Foret v. Adobe class action illustrates how the modern contract of adhesion has evolved from fine print to fine links. As digital interfaces become the new vehicles for assent, courts and regulators are signaling that hidden hyperlinks and misleading design choices will not withstand scrutiny. Software and cloud vendors that rely on automatic renewals or tiered billing should review their contracting processes now—before deceptive hyperlink practices become the next wave of consumer litigation. About Tactical Law Group LLP Tactical Law Group LLP is a boutique law firm focused on technology contracts, software licensing disputes, and failed ERP and cloud implementations. Our attorneys monitor emerging litigation trends affecting SaaS providers, resellers, and customers across the United States. For further insights into deceptive subscription practices and hidden online agreements, visit tacticallawgroup.com By Pam Fulmer
Enterprise Resource Planning (ERP) software is meant to unify a company’s core functions — finance, inventory, HR, sales, and operations — into one seamless system. But when implementations go wrong, they go spectacularlywrong. Multi-million-dollar projects can collapse under the weight of poor planning, hidden contract risks, and unrealistic promises. Over the last several years, ERP lawsuits have surged as businesses confront failed go-lives, blown budgets, and software that simply doesn’t work as promised. These cases reveal recurring contractual pitfalls and litigation themes that every company should understand before signing — or litigating — an ERP deal. 1. The “One-Sided” Contract Problem ERP contracts are almost always vendor-drafted, and rarely negotiated deeply enough. These agreements typically limit termination to “material breach,” restrict remedies to “re-performance,” disclaim reliance on pre-contract statements, and cap damages at the fees paid. In other words, the playing field is tilted in favor of vendors such as Oracle and SAP. In practice, that means the customer is paying for the privilege of having no meaningful remedy when the project fails. Courts scrutinizing ERP disputes have found that contractual asymmetry—where one side controls performance and the other bears the risk—can support claims of unconscionability, misrepresentation, or even fraud in the inducement. Companies entering new ERP engagements should focus on balancing rights and obligations: termination for cause, realistic service-level commitments, and clear consequences for missed milestones. 2. Misrepresentation and “Sales Cycle Fraud” A consistent litigation theme in ERP cases involves misrepresentations during the sales cycle. Vendors often tout “industry-specific solutions,” “pre-configured accelerators,” or “SuiteSuccess”-type templates that supposedly guarantee rapid implementation. Sales teams are often comprised of individuals who have no real understanding of the technology they are promoting but they are excellent communicators and adept at instilling trust in the unsuspecting customer. Do not fall for the sweet talking sales person trap. In many lawsuits, discovery reveals that these representations were marketing talking points, not deliverables. When the customer later discovers that the promised functionality or timeline was unattainable, the question becomes whether those statements were mere “puffery” or actionable misrepresentations. Also, many of the initial scoping meetings are held online via Zoom or Teams. Vendors avoid putting anything in writing, but are willing to make all kinds of promises orally in the meetings. Ask vendors for permission to record the meetings. If they balk, then be ready to take excellent notes and follow-up the meetings afterwards with emails to the vendor confirming what was discussed. ERP customers need to create their own paper trail to best protect themselves. Recent decisions suggest that where a vendor’s sales claims are specific (e.g., “this system will meet your regulatory requirements on Day One”), and the customer reasonably relied on them, courts are increasingly willing to let fraud claims proceed alongside breach of contract claims. And under California law, fraud in the inducement will cause any economic loss defense to fail if properly pled at the pleading stage. 3. The “Scope Creep” and Change Order Trap Another major litigation driver is scope management. ERP projects evolve — modules are added, integrations multiply, and “configuration” quietly turns into “customization.” If the contract lacks clear change management procedures, vendors often exploit ambiguity to demand additional fees, delay timelines, or avoid accountability. Conversely, if the client pushes changes informally, the vendor may later claim those requests voided the original timeline or deliverables. Successful ERP contracts establish formal change control processes: written approval, pricing mechanisms, and impact analysis for each modification. In litigation, these documents often become the paper trail proving which party expanded or derailed the project scope. 4. Data Migration and Integration Failures Data migration is the unsung villain of ERP disasters. Vendors frequently understate the effort required to cleanse, map, and migrate legacy data — leading to failed go-lives and business disruption. Customers usually have no real understanding of the hours of commitment and hard work that this aspect of the implementation will require. When litigation follows, discovery often shows that the vendor never performed adequate data assessment or testing. The resulting claims focus on negligent implementation, breach of professional standards, or failure to deliver a system fit for purpose. Contractually, data migration and integration should be treated as core deliverables, not optional services. Define ownership, responsibilities, and testing protocols in the statement of work — not in vague “collaborative” language. 5. The “Go-Live” Decision and Post-Implementation Failures A common flashpoint in ERP lawsuits is the go-live date. Vendors push for early go-live declarations to trigger milestone payments or project “completion.” Customers, meanwhile, may be pressured to sign off despite known defects. Customers should resist such efforts and only sign off when the system is truly ready. Otherwise, customers are in for a world of hurt. Once the system goes live, vendors often argue that subsequent problems are support issues, not implementation failures — insulating them from liability under “acceptance” provisions. Litigation frequently turns on whether the system was ever truly “accepted,” whether acceptance testing was manipulated, and whether the vendor concealed known deficiencies. Clear acceptance criteria and documented testing results can make or break a case. 6. Limitation of Liability and Damages Cap Clauses Nearly every ERP contract includes a limitation of liability provision capping damages at fees paid — even if the project destroyed millions in business value. Courts generally enforce such caps unless there’s evidence of intentional misconduct, gross negligence, or fraud. That’s why allegations of fraud in the inducement or willful misrepresentation are common in ERP litigation: they can open the door to consequential damages or rescission despite contractual caps. And as discussed above, many case fact patterns show slick sales teams overselling capabilities and inducing potential customers into expensive cloud software agreements that never really work. From a drafting standpoint, customers should negotiate carve-outs for fraud, gross negligence, and data loss, and vendors should ensure those carve-outs are narrowly drawn to maintain predictability. If a vendor will not make changes to these provisions, you may want to find another vendor who will. 7. Arbitration vs. Litigation: Procedural Posture Matters Many ERP contracts require arbitration — often in vendor-friendly venues. Yet post-termination and other disputes can raise intellectual property and data ownership issues that fall outside arbitration clauses. Recent cases have tested whether unauthorized post-termination use or data withholding constitutes a “contractual” dispute or a statutory or property rights claim, potentially allowing litigation in court despite an arbitration clause. Counsel should carefully analyze whether an arbitration clause actually governs all disputes, particularly where IP rights or fraud claims are at issue. Vendors like arbitration clauses because they can cloak their failures in secrecy in confidential arbitration proceedings rather than in a public court of law. Instead, of agreeing to arbitration, consider deleting such clauses and adopt language that allows parties to seek relief in federal or state court. The threat of a public lawsuit filing will often cause ERP vendors to be more willing to look for common ground in an attempt to avoid a messy public lawsuit. 8. Lessons for Future Contracts — and Litigation Strategy The pattern across ERP lawsuits is strikingly consistent:
Final Thoughts ERP implementations are complex, high-stakes undertakings — but the legal issues that arise from them are surprisingly predictable. Whether advising on contract formation or litigating post-go-live failures, understanding the recurring themes in ERP lawsuits helps clients protect their investments and recover losses when vendors fall short. At Tactical Law Group, we have seen these disputes play out across multiple platforms. Each case reinforces the same message: technology may change, but contract fundamentals do not. If you’re implementing an ERP system, you’re already juggling risk: budget overrun, schedule slippage, change management, data migration, and integration complexity. The last thing you need is a vendor contract that shifts even more risk onto your organization—often invisibly. Oracle commonly tucks its operative cloud terms into URLs or hyperlinks embedded in Estimate/Order Forms. Those seemingly “standard” terms contain multiple one-sided provisions that can leave customers exposed in precisely the moments they most need leverage.
This article analyzes two Oracle form agreements—the Oracle Cloud Services Agreement (CSA) and the Oracle NSGBU Transactional Subscription Services Agreement for NetSuite (NSA)—to highlight the most customer‑hostile clauses, why they matter in the ERP implementation context, the key differences between the forms, and practical strategies for leveling the playing field. Citations to specific clauses appear in footnotes. Why “URL terms” and buried hyperlinks matter in ERP deals
Oracle’s forms are written to protect Oracle. That’s expected—but not inevitable. In ERP, your operational risk dwarfs your subscription fee, so “standard terms” that cap liability at 12 months’ fees while banning consequential damages simply do not reflect your exposure. Do not accept boilerplate on faith. Treat the contract as a control surface for implementation risk: define, measure, and enforce the behaviors you need from your vendor when it matters most. With disciplined contracting, you can convert invisible hyperlinks into enforceable commitments—and keep your ERP program out of the ditch. By Pam Fulmer
On September 2, 2025, the U.S. District Court for the Northern District of Ohio issued a ruling that should alarm every small and mid-sized business that has purchased software from global giants like Oracle. In Realscape Group LLC d/b/a Realogic Solutions v. Oracle America, Inc., Judge Charles E. Fleming transferred the case from Ohio to California, enforcing a forum-selection clause hidden deep in Oracle’s online Subscription Services Agreement (SSA) . This decision highlights a growing problem in ERP implementation disputes: courts continue to side with large corporations that bury key contractual terms in hyperlinked documents few small business customers ever read. While these rulings may appear to respect “freedom of contract,” they tilt the playing field in favor of big tech giants and against mom-and-pop and other small and medium size businesses, who are exploited by big tech companies and often go bankrupt or face severe financial challenges due to the one-sided clauses in these hyperlinked contracts. . Background: Realogic’s Oracle NetSuite Dispute Realogic Solutions, a small IT services and healthcare staffing company in Ohio, purchased Oracle NetSuite software to manage its accounting, HR, and payroll. Oracle assured Realogic that the system would be fully implemented and operational by July 2025. But Realogic alleges that Oracle knew it could not meet that timeline and instead of implementing the system itself, Oracle subcontracted the work overseas and sold Realogic’s debt to a third party, Wells Fargo Equipment Finance. The project never succeeded, leaving Realogic without functioning software despite being on the hook to Wells Fargo to pay $184,000 in fees under Oracle’s clever financing arrangement, which effectively severs its performance obligations from the customer's payment obligations. Frustrated, Realogic filed a class action lawsuit against Oracle NetSuite, seeking relief for itself and other small businesses nationwide that paid for implementation services but never received working software. Realogic also sued Wells Fargo in the Northern District of Ohio to seek to invalidate the financing assignment. The case against Wells Fargo has subsequently been settled and the case dismissed. The Hidden Forum-Selection Clause At the center of the case is Oracle’s Subscription Services Agreement, buried in a hyperlink that can only be found on Oracle’s confusing contracts page. Realogic’s order forms contained a one-line reference to the SSA, which included a forum-selection clause requiring all disputes to be litigated in California. For a small business, being forced to sue in San Francisco or Santa Clara Counties in California is no small matter. The costs of out-of-state litigation often discourage small businesses from pursuing valid claims. Realogic argued that the clause was deceptively hidden in fine print and that Oracle had fraudulently induced them into the deal. The Ohio court disagreed. Judge Fleming held that Realogic had over a year to review the SSA hyperlink and was therefore bound by its terms. In transferring the case to the Northern District of California, the court also reasoned that Plaintiff’s choice of forum was not as important given that the case was a nationwide class action. Why This Ruling Hurts Small Businesses in ERP Disputes 1. Hyperlinked Agreements Are Not Real Negotiation Oracle NetSuite contracts are almost always presented as take-it-or-leave-it deals. The reality is that small businesses have no power to negotiate hidden clauses. Yet courts enforce them as if both parties bargained at arm’s length. 2. Courts Treat Small Businesses Like Large Corporations The court emphasized that Realogic is a business, not a consumer, and therefore should be held to a higher standard. But small LLCs and family-run companies are far closer to consumers than to Fortune 500 corporations with large and sophisticated legal teams. 3. Forum-Selection Clauses in Contracts of Adhesion Block Access to Justice Forcing small companies to litigate in California significantly raises legal costs. Many businesses simply give up. Oracle most likely knows this, and it uses such clauses to make litigation for its customers expensive as well as inconvenient. Sadly many companies will continue to pay Oracle to avoid Oracle and its assignees ruining the company's credit, even though they got nothing of value from the agreement. 4. Oracle Gets a Free Pass on Failed ERP Implementations By enforcing these clauses, courts allow Oracle to avoid facing consequences for failed NetSuite implementations. Even when businesses allege fraud, misrepresentation, and breach of contract, Oracle can push disputes into its home courts, making litigation prohibitively expensive for smaller plaintiffs. The Bigger Picture: Oracle NetSuite Litigation and Buried Clauses Oracle is not alone. Many software vendors use hyperlinked agreements to impose forum-selection clauses, arbitration provisions, and liability limits. Courts often uphold them in the name of contractual freedom. But the reality is that these agreements are contracts of adhesion. Not many small businesses buying ERP software can get Oracle to agree to revise its SSA. And when courts enforce them, they prioritize formalistic “consent” over fairness. Rethinking Forum-Selection in ERP Implementation Lawsuits To restore balance, courts and lawmakers should:
Conclusion: Small Businesses Need Protection from Oracle NetSuite Contracts The transfer of Realogic v. Oracle may look like a routine procedural ruling, but it has Important consequences. By enforcing Oracle’s forum-selection clause, the court has made it harder for Realogic — and small businesses like it — to obtain justice and seek redress for their injuries. This decision is part of a broader pattern: failed ERP implementations paired with hidden contract terms that trap small companies in unfair forums. Until courts or legislators step in, small businesses remain at a severe disadvantage in Oracle NetSuite litigation. At Tactical Law Group, we represent companies harmed by failed ERP projects and unfair vendor practices. If your business is facing problems with Oracle NetSuite, SAP, Workday, Filevine, or other ERP systems, contact us. You deserve a fair fight — and we’re here to help. By Pam Fulmer
In one of the most interesting and long-running copyright and software licensing battles in enterprise software history, Oracle and Rimini Street have reached a major inflection point. On July 18, 2025, the U.S. District Court for the District of Nevada granted a joint stipulation to stay all proceedings and vacate the case schedule in Oracle Int’l Corp. et al. v. Rimini Street, Inc., Case No. 2:14-cv-01699-MMD-DJA. The litigation—spanning over a decade, multiple trials, and appeals—has shaped the legal landscape governing third-party software support and license compliance. We have blogged on the case in the past as our readers know, and additional articles can be found on our website. At Tactical Law Group LLP, we counsel clients navigating complex software licensing issues with large enterprise software publishers, including disputes involving third-party support, software audits, vendor overreach, Oracle Java SE disputes, and failed ERP implementations involving Oracle, NetSuite and other vendors. A Historic Copyright Dispute with Far-Reaching Implications The Oracle v. Rimini saga began in earnest in 2010 with a separate lawsuit (often referred to as Rimini I), in which Oracle successfully obtained a $50+ million judgment and a permanent injunction against Rimini Street for infringing Oracle’s copyrights in delivering unauthorized third-party support services. In the second case—filed in 2014—Oracle continued its claims, focusing on Rimini’s continued practices and alleged violations of Oracle’s software license terms, particularly around PeopleSoft, JD Edwards, and other Oracle applications. The litigation has spanned:
Key Terms of the Court's Stay Order The July 2025 court order staying the case follows a successful June 2025 mediation between the parties and a subsequent settlement agreement effective July 7, 2025. Rimini has agreed to fully wind down its PeopleSoft support operations by July 31, 2028, after which Oracle will dismiss the case with prejudice. Notably:
Why This Case Matters Enterprise software support has become a major profit center for enterprise software companies such as Oracle. In fact, it has been said by some in the software industry that large publishers are no longer innovating to grow revenue, but instead are focusing on negotiating annual support uplifts. Oracle has support policies that are expressly incorporated into its license agreements, so enterprise customers should be aware of those policies and other contractual terms when moving away from Oracle and to third party vendors for support. The case also illustrates that although Oracle seems at times actually reluctant to sue its customers, it has no such qualms about suing third party support vendors who may be cutting into its lucrative support offerings. In those cases Oracle will be relentless. Tactical Law’s Role in Software Licensing Disputes At Tactical Law Group LLP, we represent licensees in disputes with major software vendors, including Oracle, Micro Focus, SUSE, Microsoft, IBM, Broadcom, Quest, Actian, VMware, Adobe, BSA, Autodesk, Anaconda and others. We have deep experience advising clients on:
Oracle and its NetSuite cloud-based ERP platform are again under legal fire. Veronica’s Auto Insurance Services, Inc. (“VAI”), a California-based insurance company, has filed a lawsuit in San Francisco Superior Court alleging Oracle and NetSuite fraudulently induced it into purchasing a flawed ERP system that ultimately failed to function as promised. The complaint, filed on April 17, 2025, asserts claims for breach of contract, breach of the implied covenant of good faith and fair dealing, fraudulent and negligent misrepresentation, and violation of California’s Unfair Competition Law (Bus. & Prof. Code § 17200).
Alleged Misrepresentations and Broken Promises According to the complaint, NetSuite sales representatives made a series of specific promises before contract execution to win VAI’s business. These included assurances that the system was tailored for the insurance industry, would require no third-party add-ons, and would be implemented with full Spanish-language support—essential for the client’s predominantly Spanish-speaking workforce. Relying on these representations, VAI signed a Professional Services Agreement and Statement of Work with NetSuite in April 2021, committing to more than $111,000 in fees. Once implementation began, however, it became clear the representations were untrue. Key functionalities were either missing or required costly third-party plugins. Data migration failed. Core features like vendor payment processing, financial reporting, and role-based user access didn’t work as promised. Worse still, the promised Spanish-language training never materialized, leaving key staff unable to use the system. Ultimately, Veronica’s abandoned the system entirely in 2024, absorbing substantial financial losses. A Growing Pattern: Oracle ERP Litigation Landscape Expands The lawsuit filed by VAI is just the latest in a mounting series of legal actions that paint a troubling picture of Oracle’s conduct in selling and implementing its ERP software. In recent years, a variety of businesses across industries have come forward alleging that Oracle misrepresented the capabilities, readiness, or suitability of its ERP solution—often promising a turnkey system that ultimately required extensive customization, failed to deliver key functionality, or came with hidden costs such as required and expensive third party add-ons. For example, in River Supply v. Oracle, filed by our law firm, Plaintiff alleged that Oracle made sweeping misrepresentations during the pre-contract sales cycle, touting NetSuite as a ready-to-go solution that could be quickly configured to go live within months at a fixed price. But like in VAI’s case, implementation challenges emerged early and often. In Realscape Group LLC v. Oracle, a class action lawsuit filed in the Northern District of Ohio, the plaintiff has accused Oracle of misrepresenting its ERP system as “off-the-shelf” while concealing the need for significant additional development and expensive third-party software purchases as add-on costs. Advance Lifts, Inc. similarly claimed Oracle sold it on functionality that did not yet exist. Additional lawsuits by Morse Communications and Elkay Manufacturing underscore the recurring nature of the same type of complaints raised by the Plaintiff here. Janco Foods, Inc. v. Oracle America, Inc. provides another stark example. In Janco, a Texas-based food distributor alleged that Oracle failed to deliver on an ERP implementation. The project was never completed, forcing Janco to abandon the system altogether. The complaint alleged breach of contract and fraudulent inducement, claiming Oracle misrepresented both its capabilities and the system’s readiness for the food distribution sector. Another case, Barrett Business Services, Inc.v. Oracle America, Inc., filed in San Francisco Superior Court, further illustrate how NetSuite implementations often unravel. Barrett, a staffing company, alleged the software failed to meet basic payroll and compliance needs, as well as suffering from other defects. And problems with Oracle’s ERP product are not limited to this side of the pond. Recently, an auditor hired by the City of Birmingham in England issued a scathing report finding fault with the solution. According to one article, “Since it replaced aging SAP finance software with Oracle's cloud-based Fusion for HR, payroll, ERP, and finance in April 2022, Europe's largest local authority found the system "effectively crippled" its ability to manage and report on finances, auditors found. It was still not "safe and compliant" two-and-a-half years after the replacement went live.”https://www.theregister.com/2025/03/11/birmingham_oracle_auditors/?td=keepreading The project to “replace an aging SAP system began in October 2019 with an expected budget of £19 million ($23.6 million) and go-live dates of December 2020 and February 2021. Auditors now say the costs may be as much as £130 million ($161 million), and although the new software went live in April 2022, the council is "unlikely to have a fully functioning finance system until at least 2026." https://www.theregister.com/2025/01/29/birmingham_oracle/ Together, these lawsuits and others, point to a systemic problem in how Oracle and NetSuite market, contract for, and deliver their ERP solutions. Businesses considering Oracle ERP software should proceed with caution, ensure detailed written documentation of all representations, and fully understand the binding legal terms—often buried in hard-to-access agreements like the Subscription Services Agreement, which is nothing more than a grayed out hyperlink on the Estimate Form. Implications and Advice for NetSuite Customers The Veronica Auto Insurance lawsuit adds to the growing body of litigation alleging that Oracle/NetSuite uses a bait-and-switch model to sell ERP systems that fail to perform as represented. For businesses considering a NetSuite or other Oracle ERP solution, or currently entangled in a troubled implementation, these cases highlight the importance of documenting all pre-contract representations and seeking legal counsel early. It also reinforces the need to scrutinize every referenced agreement—including "click-through" and incorporated terms not provided upfront. Tactical Law continues to monitor Oracle litigation closely and represents businesses harmed by Oracle and NetSuite’s practices. If your company has experienced similar issues with Oracle or NetSuite, we invite you to contact us to evaluate potential claims. Cases
|
By Tactical Law Attorneys and From Time to Time Their Guests
|
RSS Feed
tactical law group llp |
COPYRIGHT TACTICAL LAW GROUP LLP 2016-20235 ALL RIGHTS RESERVED
|
Legal Disclaimer: Contents may contain attorney advertising under the laws of some states. Prior results do not guarantee a similar outcome.