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By Pam Fulmer
We have been following a very interesting licensing dispute filed in the Eastern District of New York by Tibco Software Inc. (“TIBCO”) against OptumRx Administrative Services, LLC (“OptumRx”). According to TIBCO’s Second Amended Complaint (“SAC”) its “software facilitates the analysis of data and/or the transfer of data, particularly between software platforms that would otherwise not be able to communicate with one another”. TIBCO is no stranger to litigation arising out of software audits and has filed several lawsuits over the years against its customers for breach of license agreement and copyright infringement related to a software audit. TIBCO alleges that the agreement at the center of the licensing dispute is an Enterprise Agreement. TIBCO’s Enterprise Agreement is similar in certain respects to Oracle’s Unlimited License Agreement (“ULA”). Under each agreement a licensee may sign up for a certain fixed period of time and deploy as many copies as it wants of the licensed software within its IT environment. At the end of the fixed period, here three years, the licensee certifies the number of copies of the software it is using in its environment and that amount becomes its fixed perpetual license entitlement. The parties agreed to additional payment and other terms in the event that an “Extraordinary Corporate Event” occurred during the period of the Enterprise Agreement. An “Extraordinary Corporate Event” was defined as “a corporate transaction which results in Customer acquiring, being acquired by, merged, or otherwise combined with another entity or into another entity's legal or corporate structure (including an acquisition of all or substantially all of the assets of another entity) which, prior to the corporate transaction, was not part of the Customer or its legal or corporate structure.” According to the contract: “During the Enterprise Term, Customer’s right to deploy shall not extend to any Extraordinary Corporate Event unless the process in Section 3 of this Order is followed. For clarity, the process stated in Section 3 will only be applicable if Customer experiences an Extraordinary Corporate Event as defined below and if the new corporate entity (which is not part of the legacy Customer entity) wants to deploy Software pursuant to this Order Form.” (emphasis added) If an Extraordinary Corporate Event occurred during the term, then OptumRx would need to execute a new Order Form and under certain circumstances pay additional licensing fees to TIBCO based on the amount of annual revenues of the acquired companies, which would be deploying the software. “In the event Customer enters into an Extraordinary Corporate Event during the Enterprise Term, it can accommodate additional usage of the Software licensed under this Order Form by executing a subsequent Order Form with Licensor in accordance with pricing schedule stated below (a “Future Order”) provided: (i) the Future Order must represent a binding non-cancelable commitment on the part of Customer with no additional terms and conditions, (ii) Customer must deliver the signed Order Form for the Future Order (substantially in the form set forth herein) to Licensor on or before three (3) years from the Order Form Effective Date, (iii) the Software is still generally available as of the date of the Future Order, and (iv) Customer agrees to purchase the first year annual Silver level Maintenance relating to the Future Order. For the avoidance of doubt, no Future Order form and no reporting is required by Customer in the event Customer enters into an Extraordinary Corporate Event where the new corporate entity wants to license Software under this Order Form and the annual revenue of the new corporate entity (excluding the value of the legacy Customer entity) is less than one billion dollars (as stated in the new corporate entity’s most recent audited statement prior to the Extraordinary Corporate Event).” (emphasis added) TIBCO contends that during the unlimited deployment period, OptumRx acquired 3 companies whose annual revenues exceeded the $1 billion revenue threshold and were using the software and that therefore additional license fees were owed to TIBCO. Although TIBCO does not have concrete evidence that the newly acquired companies were actually using the software, the SAC alleges that “57. On July 20, 2020, pursuant to Section 1 of the Enterprise Agreement, OptumRx provided TIBCO its Deployment Report, which gave notice of the Number of Units of the Licensed Software it had deployed during the Enterprise Term. The numbers OptumRx reported were consistent with a doubling of OptumRx’s production capacity. 58. On information and belief, the large increase in OptumRx’s deployment of the Licensed Software to process additional data reflects OptumRx’s usage of the Licensed Software to process data associated with the Acquired Companies.” In short, TIBCO is alleging that since OptumRx’s production capacity had doubled, it must be using the software to process the data of the newly acquired companies, and therefore owes additional licensing fees to TIBCO for the usage. For its part, OptumRx argues that an Extraordinary Corporate Event only occurs when a new company is acquired with revenues that exceed the thresholds, and that company wants to deploy the TIBCO software. According to OptumRx, none of the acquired companies is deploying the software. Counsel for OptumRx argues this in a related letter brief: “There is no dispute that ORx [OptumRx] acquired three companies with annual revenues above the contractually-specified threshold during the contract term – called Genoa Healthcare, Avella Specialty Pharmacy and Diplomat Pharmacy (the “Acquired Entities”) – but ORx denies that any of those companies wanted to license TIBCO’s Software and further denies that such Software was ever deployed to those companies. Perhaps because it knows these denials are well-founded, TIBCO has advanced an alternative, insupportable interpretation of the Order Form, namely that TIBCO would be owed additional fees if ORx itself used TIBCO Software to process data “from” or “used by” the Acquired Entities, even if ORx never allowed those Entities access to the Software or deployed it to their servers. That rewriting of the language of the Order Form appears to be TIBCO’s primary theory of liability. . .” We are not able to review a copy of the license agreement as it has not been attached to the SAC, although it may be included in those letter briefs filed under seal. However, it appears that TIBCO may not have included any restriction making clear that the software could not be used for the benefit of another company, without paying an additional licensing fee. TIBCO is the master of its own license agreement. It chose to define an Extraordinary Corporate Event as the acquisition of a company that exceeded a certain threshold in revenues and where the acquired company wanted to deploy the software. Had it wanted to do so it could also have included a clause that additional licensing fees would need to be paid if OptumRx used its software to process data for the benefit of these newly acquired companies. However, it does not appear to have done so. TIBCO should be stuck with the contract that it drafted. Readers of our blog may remember that Mars accused Oracle of overreaching in the Mars v. Oracle lawsuit when Oracle tried to take the position during the audit that users who accessed output data manipulated by Agile, should be counted as users requiring a license. Mars pushed back hard on this assertion pointing out the ridiculousness of the Oracle argument that “an employee who lacks an Agile user account, who is not trained on Agile, who never logs into Agile, and who never even touches a machine that uses the software fictitiously becomes a “user of the program” by reading data exported from Agile.” TIBCO is making a similar argument here, by essentially claiming that the companies acquired by OptumRx deploy and use the software even though TIBCO has no evidence that they directly accessed the software or that it was deployed on their servers. In short, enterprise software companies continue to seek to expand the definition of what it means to use their software. We see this all of the time with Oracle’s prospective licensing argument involving VMware and its assertion that Oracle is owed a licensing fee for every server where the Oracle software may be used in the future even if the software is not currently installed and/or running. We predict that enterprise software customers will continue to see software publishers trying to take an expansive view of what it means to use or deploy enterprise software. So be on the lookout for these types of issues, and take steps to protect yourself in the event of an audit. The case is TIBCO Software Inc. V. OptumRx Administrative Services, LLC, Case No. 1:21cv5723, (E.D.N.Y.). Check back periodically for updates.
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By Pam Fulmer
Oracle licensees are advised to zealously guard their contractual rights and avoid ceding ground to Oracle based on overreaching software audit demands. Oracle is a master at playing the long game and has been known to use its audit findings as leverage to extract contractual concessions from its licensees, which Oracle can later exploit in subsequent audits. For example, we know that Oracle has for years taken a very expansive view of the “installed and/or running” language of the processor definition in its Oracle license agreements. As a reminder, Oracle uses this language to claim that it entitled to a licensing fee for all processors where the Oracle binaries could be installed in the future, even though they are not presently installed. This is Oracle's "available for use" argument. Oracle cites to its Partitioning and other policies to support this argument, which policies are not expressly incorporated into the fully integrated Oracle license agreement, and thus are barred by the integration clause. We also know that Oracle routinely asserts this argument in audits where its customers use VMware virtualization software. And we also know that Oracle has never sued any of its customers to seek to enforce such an extra-contractual interpretation. In fact, the only case that squarely raised this issue was Mars. v. Oracle, which was a case brought by global confectioner Mars seeking declaratory relief from the San Francisco Superior Court that Oracle’s legal argument around VMware and the “installed and/or running” language of the processor definition was not supported by the contract. And we know that Oracle resolved the case very quickly, perhaps to avoid the necessity of publicly going on the record with this argument in an opposition to the preliminary injunction motion brought by Mars. Still some customers will pay Oracle these prospective licensing fees or capitulate to Oracle’s other demands such as providing diagrams of their IT environment solely to get out from under the audit. But such concessions could have major repercussions down the road and may later be used by Oracle against the unsuspecting customer in a future audit. For example, Oracle has been known to reduce its monetary demands provided the customer sign a document that includes what has been called by some a “Declaration of Non-Migration”. The purpose of this Declaration appears to be to make Oracle’s expansive definition of the “installed/and or running” language of the processor definition contractual. Usually, this type of demand is coupled with a request that the Oracle licensee provide a diagram of its virtual environment showing the architecture of such environment. Oracle has included language in the Declaration of Non-Migration that should the customer change the configuration of its environment, it must go back to Oracle and obtain the required licenses. How could Oracle use this language against you the Oracle customer? Well first of all Oracle could claim that the Declaration and the fact that the Oracle customer signed it shows that the licensee agrees with Oracle’s expansive interpretation of the “installed and/or running” definition. Otherwise, why would the Oracle customer sign such a document and agree to go back to Oracle for licenses if it changes its environment? And why would any Oracle customer in its right mind agree to go back and give Oracle a heads up when it changes its environment? Such a notification could lead Oracle to issue a new audit notice and open an entire new can of worms. In essence, Oracle could argue that the customer amended the contract by executing the Declaration and providing the diagram. Oracle could also argue that the Declaration shows a course of performance or dealing, where the Oracle licensee and Oracle recognized that no changes could be made to the environment, unless the customer purchases additional licenses from Oracle. So, Oracle gives the customer a break in one audit, in order to extract a concession (execution of the Declaration of Non-Migrations and production of the diagram) that Oracle uses in a future audit against the customer. Oracle licensees who provide such diagrams and agree to similar language in order to close out the audit, may give Oracle powerful weapons to use against the Oracle customer in future audits. In addition, the concession could lead to expensive and spiraling costs should the Oracle customer wish to expand its virtual environment in the future. In our view, such attempts by Oracle to use audits to extract contractual concessions should be vigorously opposed by Oracle customers during the audit. We can help with that. And if the customer has already signed the Declaration, we have assisted Oracle licensees to develop strategies to push back on these limitations. Importantly we have warned our readers that Oracle is conducting soft audits of its customers use of Java, and Oracle is applying its expansive and non-contractual processor definition to try to ring the bell on a big non-compliance gap for Java. Such soft audits and non-contractual claims involving Java should also be resisted for all the reasons we discuss above and in our previous blog post. Oracle audits are complex and confusing. Tactical Law attorneys assist clients under audit, or who are about to be audited, understand their contractual rights and manage the risk inherent in an Oracle enterprise software audit. By Pam Fulmer and Sara Schlesinger*
This blog post is a continuation of our series on fraud and breach of contract claims that have been brought against Oracle or NetSuite for failed Enterprise Resource Planning (ERP) installations and various defenses Oracle/NetSuite have used to attempt to defeat these claims. Previous blog posts focused on the importance of pleading fraud with particularity, the difference between fraud and non-actionable puffery, and considering the economic loss rule when pleading fraud alongside breach of contract. Another important consideration when pleading fraud related to a failed ERP installation is the general rule that predictions and opinions about future events are not actionable as fraud. ERP providers may use this rule to argue for the dismissal of fraud claims which are based on statements that the provider “could” or “would” deliver a functional product, a product that meets the client’s business needs, or a product by a certain date. Cognizant Worldwide Ltd. v. Barrett Business Services is instructive as an example of the right way to plead fraud based on allegations of broken promises relating to a failed Oracle ERP agreement. Barrett Business Services (“BBSI”) is a professional employer organization (“PEO”) that helps small and medium-sized companies manage human resource functions, provide employee benefits, process payroll, and more. When BBSI sought to update their human resources and payroll system, they at varying times entered into contracts related to the implementation of Oracle’s HCM cloud product with Oracle, and Oracle’s partners KBACE and Cognizant (KBACE’s parent company). BBSI alleged that it only entered into the implementation contracts based upon assurances by KBACE and Oracle that the cloud product would meet and be configured to BBSI’s specific business requirements. BBSI further asserted that Oracle held KBACE out as a company certified and experienced in implementing Oracle’s HCM cloud product, during pre-contract negotiations, including for businesses such as BBSI. Oracle’s touting of KBACE’s capabilities was a major reason why BBSI entered into the contract with KBACE. After entering into the relevant agreements for the Oracle HCM cloud implementation project, BBSI learned that the cloud product was ill suited to its business needs. KBACE subsequently delivered a revised implementation proposal to BBSI with a price tag of over $30 million. Our readers should be aware that these type of cost overruns and requests for expensive change orders are common areas giving rise to disputes that often lead to litigation in the ERP contract context. BBSI then informed Oracle and KBACE that it was rescinding the relevant contracts and ceasing further payments. When Cognizant sued BBSI for nonpayment, BBSI counterclaimed for negligent misrepresentation, innocent misrepresentation, intentional misrepresentation, and other tort and breach of contract claims. Cognizant moved to dismiss the misrepresentation claims, arguing that any alleged misrepresentations were nonactionable statements about future events as they pertained to whether the HCM cloud “would” or “could” meet certain expectations, such as implementation within a certain timeframe and price range. However, the court denied the motion to dismiss the claims finding that BBSI sufficiently alleged that Cognizant and KBACE misrepresented past or existing facts. Namely, the court agreed that BBSI had adequately alleged that Cognizant and KBACE overstated their experience with implementing cloud products and especially implementing cloud products for a company like BBSI. However, the court noted that some of the other alleged misrepresentations might be nonactionable opinions about Cognizant’s future performance. Cognizant v. Barrett demonstrates the importance of pleading past and existing material facts alongside promises of future performance when asserting fraud and misrepresentation claims. It also demonstrates the importance of pinning ERP providers down in pre-contract negotiations concerning exactly what they are promising that they can deliver, and what specific experience they have to deliver on that promise. Aggrieved ERP customers who claim fraud after being misled about an installers future performance would benefit from including misrepresentations that the installer made regarding their relevant past or current experience, if such facts exist. As a final note, it is also true that a statement about a future act that is made with the knowledge or intention that the act won’t occur, is a statement of material fact that is sufficient to support a fraud claim (as highlighted in Chase Manhattan v. Perla) against an ERP provider or implementation partner. As such, even if past or present facts were not represented during discussions that preceded contracting, a company can still have an actionable claim based on misrepresentations about performance if the ERP provider either knew they would not perform or did not intend to perform when they made the promise. However, uncovering such evidence prior to fact discovery, may be difficult, and may need to be raised down the road through an amendment to the licensee’s complaint or counterclaim. Tactical Law attorneys assist our clients in the negotiation and documentation of ERP and related agreements. If you are embroiled in an ERP related dispute involving Oracle or other ERP software publishers or ERP implementation companies we can help. * Sara Schlesinger is a rising 2L law student at Northwestern University School of Law and is a 2022 summer law clerk for Tactical Law Group LLP. By Pam Fulmer
In February 2020, Elkay Plastics Company, Inc. (“Elkay”) sued Oracle and NetSuite in San Francisco Superior Court in a lawsuit arising out of a failied ERP cloud contract. Elkay asserted a myriad of claims against Oracle/Netsuite, including fraud in the inducement, fraudulent and negligent misrepresentation, unfair competition under California Business & Professions Code Section 17200, breach of contract, breach of the implied covenant of good faith and fair dealing, breach of express warranty and unjust enrichment. Importantly, Elkay financed the ERP system through a financing contract with Oracle’s financing arm, Oracle Credit Corporation (“OCC”). What did Elkay Allege? In its Complaint, Elkay alleged that Oracle/NetSuite promised that they could implement a working ERP system to replace Elkay’s legacy system within 10 months at a cost of $2.027 million. Elkay alleged that rather than implement the ERP system within the cost and timeframe promised, Oracle began recommending additional customizations and functionality to the tune of almost an additional $1 million. At the time of filing the Complaint, Elkay alleged that it had paid Oracle $1.282 million, and still owed Oracle an additional $1.645 million for a product that “does not perform to industry standards, does not address Elkay’s core business processes, and does not meet the specific pre and post agreement representations of NetSuite and Oracle regarding performance and functionality.” When Oracle failed to address and fix the problems, Elkay discontinued payments. Risks of Financing Through Oracle Credit Corporation We have previously reported that Oracle likes to have OCC assign these financing contracts to third party banks or financing companies shortly after the ERP cloud subscription agreement is executed. Although Oracle has over promised and under delivered, under California law these third-party banks have made arguments that they accepted the assignment from OCC as an innocent holder in due course, and no matter that the software doesn’t work, “come hell or high water” the Oracle customer must pay up. In this particular action, OCC assigned the agreement to SG Equipment Finance USA Group (“SGEF”), in accordance with Oracle's OCC playbook. SGEF made a payment demand and when Elkay declined to make payment due to the defects in the software, SGEF notified the company that it was in default and could no longer use the cloud services. However, in a deviation from its normal playbook, Oracle and OCC then accepted the assignment back and notified Elkay that notwithstanding the defaults, they would grant Elkay 10 days to cure the defaults and make payment and that they would reinstate the OCC contracts and the rights to use the Cloud Services in the meantime. Oracle Goes on Offensive with Cross-Complaint Because Elkay declined to pay, Oracle and OCC filed a cross-complaint in the action alleging that Elkay was in default of the financing agreement and owed additional monies and the full contract price as well as other damages. In its cross-complaint, Oracle also took the position that Elkay’s assertions that the processing time for sales transactions did not meet its requirements, was a bogus excuse for non-payment, which had never been raised in pre-contract discussions and was only a recently trumped up excuse to get out of the contract. Instead, Oracle contended that it had substantially delivered what was required of it under the Statement of Work, and therefore was not in breach of the subscription agreement. The litigation then proceeded to move forward at a snail’s pace with a dizzying number of pro hac vice applications filed by counsel for Elkay. The parties agreed to mediate the dispute and to engage in limited pre-mediation discovery. After squabbling back and forth for a while, the parties apparently engaged in a mediation, which must have resolved the case, as the parties agreed to dismiss the entire action. Lessons Learned The case is instructive to the extent that Oracle/NetSuite filed a cross-claim against its customer for breach of contract, unjust enrichment, quantum meruit, account stated and declaratory relief and seeking to enforce the financing agreement with OCC. Oracle also sought recovery of its attorneys’ fees under the OCC agreement for enforcement of that contract. The Elkay case is also different from other Oracle related ERP litigation, since Oracle took the financing agreement back from the financing company that accepted the assignment. We can’t say with certainty why Oracle did so, but we do know that the optics of these OCC assignments are terrible and have been viewed unfavorably by at least one federal court. It also provided Oracle with the opportunity to control the litigation and mount an effective defense through the weapon of the affirmative lawsuit against the Oracle customer. ERP customers have been countersued by ERP software publishers such as Oracle, as well as ERP implementation partners, and should recognize that in certain circumstances this is a risk. These countersuits often allege that the management of the ERP customer made mistakes and did not effectively manage the project or didn’t understand their own business, or that management’s requirements changed over time and were out of scope of the agreement. The fact that an ERP customer such as Elkay could pay millions of dollars for an ERP system that apparently failed to meet the basic requirements of the business, and then get hit with such an aggressive cross-claim should be a warning to all companies contemplating entering into similar ERP agreements with Oracle/NetSuite or other ERP providers. The negotiation of the language of the ERP related agreements and the specifics of ERP implementation requirements must be a key focus of the ERP customer. Companies acquiring ERP systems need to carefully think through their requirements for the project and have a strong internal team to help manage the process. And companies contracting with Oracle/NetSuite may want to think through the potential implications of obtaining financing through OCC, and how that could create unanticipated risks down the road. Oracle Accused by Former Employee of Selling ERP Systems to Oracle/NetSuite ERP Customers That Did Not Exist Oracle/NetSuite related ERP litigation cases are also interesting when viewed through the prism of the Daramola v. Oracle America case. Daramola was an Oracle Canada employee who lived and worked in Montreal, Canada and served as an Oracle project manager for Oracle's Campus Bookstore customers. In his Complaint, he detailed an alleged Oracle business practice of intentionally misrepresenting to Oracle’s University customers that the company had a fully developed, integrated system for an online campus bookstore that could be customized and would be ready to "go live" quickly. However, according to the Complaint, no such integrated system existed, and Oracle instead would extract payments from university customers, then stall while continuing to receive payment without delivering a working ERP product. The facts pleaded in the 2022 amended complaint further highlight an alleged pattern and practice under which Oracle promised to customize a non-existent but purportedly integrated cloud system for university clients then used escalation teams to hold off customers who were making subscription payments for the product and receiving nothing in return. According to the Complaint, Project managers, like Daramola, and "escalation teams" were directed to further mislead customers about the lack of development for the system the customer had supposedly acquired, by for example, blaming delivery delays on the customers "unforeseen customization requests," extracting change orders for such "customizations," then requiring customers to pay more while buying Oracle more time to deliver a functioning ERP product. Eventually after three pleading attempts, the Darmola case was dismissed because the Northern District of California essentially found that the claims did not relate to California and could not be asserted by litigants living outside the U.S. against a California company that was separate from its Canadian sister company. The court reasoned that Plaintiff worked for a Canadian subsidiary of Oracle in Canada, and had not established legal theories to support a claim against Oracle America, Inc. directly here in California. Darmola recently appealed the case to the Ninth Circuit. We will be watching to see what happens. It seems a shame as it has been our experience that the mother Oracle ship in Redwood City appears to be running the show even outside of the United States. However, if the allegations in Daramola are true, we would suspect that these types of predatory practices are not simply limited to university related ERP customers of Oracle/NetSuite. And having reviewed complaints filed in the Elkay, Barrett Business Services, Morse Communications, WG America Company and other lawsuits against Oracle/NetSuite we certainly see striking similarities and patterns. According to these lawsuits, Oracle/NetSuite represents that they have a fully integrated and developed solution for the particular customer in the particular industry and they will only need to tweak the software and can go live quickly. But the reality appears much different. Instead of getting the solution that was promised, ERP customers get hit with multiple change orders, demands for additional customization and escalating costs and increased delays. In short, not what they thought they had bargained for. Tactical Law attorneys assist our clients in the negotiation and documentation of ERP and related agreements. If you are embroiled in an ERP related dispute involving Oracle or other ERP software publishers or ERP implementation companies we can help. By Pam Fulmer and Sara Schlesinger*
This blog post is a continuation of our series on litigating fraud and breach of contract claims related to failed Enterprise Resource Planning (ERP) software installations against Oracle and its subsidiary NetSuite. ERP software is a business planning and management tool and is provided by companies (or subsidiaries of companies) including NetSuite, Oracle, SAP and other software publishers. In a previous blog post, we discussed how Oracle has sought to defeat fraud claims related to failed ERP installations by arguing that any alleged misrepresentations by Oracle were non-actionable puffery. This blog post delves into the economic loss rule that Oracle similarly uses to attack fraud claims and suggests some best practices to ensure fraud claims stick. As discussed in previous blogs, customers of NetSuite have sued the company alleging that NetSuite overpromises to ERP customers in pre-contract negotiations and fails to deliver a functional ERP product. Customers seeking relief from such unfair business practices may want to consider bringing fraud claims, in addition to breach of contract claims against NetSuite if the facts support it. There are many reasons why asserting a fraud claim can be advantageous. Fraud claims can support punitive damages awards, unlike contract claims. The threat of punitive damages can be a powerful incentive for encouraging a settlement and speedier resolution for aggrieved customers. Further, the customer’s contract may specifically limit, disclaim, or foreclose (1) liability for breaching certain representations or warranties; or (2) certain damages which may be available under a fraud claim. Fraud claims may be more likely to succeed than breach of contract claims due to these limitations or simply due to the applicable law. Moreover, fraud claims can allow a plaintiff to seek recission and unwinding of the contract in question. When asserting fraud claims, smart pleading is important to ensure that the opposing party cannot defeat the claim on a motion to dismiss or demurrer. Defendants like NetSuite have used the economic-loss rule, among other strategies, to ask courts to strike down fraud claims brought with breach of contract claims (for an example, see Grouse Rivers Motion to Dismiss, Docket Entry 25). What is the economic-loss rule and why is it important to plead around? The economic-loss rule bars fraud claims if the plaintiff’s claims for relief only assert economic losses related to broken contractual promises. As seen in the 2004 Supreme Court case Robinson Helicopter Co. v. Dana Corp., this doctrine polices the line between tort and breach of contract claims by preventing fraud claims that are redressable under contract law unless the purchaser suffered “harm above and beyond a broken contractual promise.” However, a party that entered a contract due to fraudulent inducement can recover in both contract and tort law. The Supreme Court noted this exception to the economic loss rule in Robinson Helicopter Co., amongst other exceptions. Each exception discussed arises from either (1) a duty completely independent of the contract; or (2) conduct that is “both intentional and intended to cause harm.” Now for the non-lawyers, what is fraudulent inducement? In a nutshell, fraudulent inducement is when a party intentionally lies to another party to encourage them to enter a contract, and the deceived party decides to enter the contract based on the false representations. Grouse River Outfitters Ltd. v. NetSuite, Inc. illustrates the fraudulent inducement exception in the context of ERP agreements with NetSuite. Grouse River, an outdoor sporting supply company, contracted with NetSuite to license ERP software to help run its business. Grouse River later asserted (1) fraudulent misrepresentation, (2) negligent misrepresentation, and (3) fraud in the inducement claims—among other claims including breach of contract—against NetSuite in the Northern District of California, where most lawsuits brought involving Oracle or NetSuite are litigated (to read the claims, see Grouse Rivers First Amended Complaint, Docket Entry 9). NetSuite moved to dismiss the negligent misrepresentation claim, arguing that the claim should be barred because Grouse River had only asserted economic losses. The court dismissed the fraud claims on another basis but concluded that the economic loss rule did not preclude Grouse River’s negligent misrepresentation claim, noting that each of Grouse River’s three fraud claims “allege that NetSuite’s misrepresentations induced [Grouse River] to enter the subject contracts.” The court cited portions of Grouse River’s First Amended Complaint which asserted (i) that NetSuite induced and intended for Grouse River to rely on representations that NetSuite knew or should have known were false; and (ii) that Grouse River was entitled to recission of the contract and damages “as a direct and proximate result of NetSuite’s false representations which induced Grouse River to enter into [the contracts]” (emphasis added). According to the court, the fraud claims asserted more than just a failure by NetSuite to keep their contractual promises and were “independent of” the breach of contract claim. Barrett Business Services, Inc. v. Oracle America, Inc. (Case No. CGC-19-572474) is another example of how to avoid economic loss rule issues while pleading fraud alongside breach of contract for failed ERP installations. As detailed in a previous blog post, Barrett Business Services (“BBSI”) sued Oracle and its partners Kbase Technologies, Cognizant Worldwide, and Cognizant Technology for negligent misrepresentation, breach of contract, and other claims over a failed ERP installation. In the original complaint’s negligent misrepresentation claim, BBSI emphasized the defendant’s false representations, BBSI’s reliance on the misrepresentations, and the damage BBSI suffered due to this reliance. While the claim mentions that BBSI entered contracts with the defendants “as a result” of the misrepresentations, and that the contracts “were procured through misrepresentations,” the claim seems to emphasize damage to BBSI due to reliance on false statements by the defendants more so than fraudulent inducement by the defendants itself. In a demurer, Oracle asserted that BBSI’s negligent misrepresentation claim was barred by the economic loss rule because their breach of contract claims, and negligent misrepresentation claim relied upon the same allegations that the ERP software was unable to meet BBSI’s business requirements. In essence, BBSI seemed to be claiming the same issues arose from the misrepresentations and the breach of contract. BBSI then amended the complaint, making clear in negligent misrepresentation claims that BBSI was “induced” to enter the relevant contracts “as a proximate result of” the defendants’ misrepresentations and suffered damages “as a direct and proximate result of Defendants’ misrepresentations.” The phrasing more clearly rested BBSI’s negligent misrepresentation claims on fraudulent inducement to contract itself, rather than on broken promises from the resulting contract. Oracle’s answer to the amended complaint did not assert any economic loss rule arguments against the negligent misrepresentation claims. Grouse River, and Barrett Business Services contain lessons for aggrieved ERP customers seeking to assert fraud alongside breach of contract claims. The fraud claims that focused on fraudulent inducement caused by false representations were able to either avoid or survive economic loss rule challenges in these cases. This highlights the importance of differentiating between the bases for the fraud claims (misrepresentation leading to fraudulent inducement) and the breach of contract claims (broken contractual promises) in pleadings against parties responsible for failed ERP installations. * Sara Schlesinger is a rising 2L law student at Northwestern University School of Law and is a 2022 summer law clerk for Tactical Law Group LLP. By Pam Fulmer
On June 3, 2022 all of the parties in the Sunrise Firefighters' security class action suit against Oracle filed a notice with the court announcing that they had reached a settlement. The parties also asked Judge Freeman to vacate the Case Scheduling Order in light of the settlement. Previously we predicted that a settlement might be imminent since the court did certify the class. Once the class was certified Oracle faced significant risk that discovery might bring to the light of day certain of Oracle's predatory audit practices taken from its Audit, Bargain, Close ("ABC") Playbook. The threat of imminent and extensive discovery must have put significant settlement pressure on Oracle. Now that settlement has come to pass and the parties are preparing settlement documents for the court's approval, what does this potentially mean for Oracle customers? In our opinion it may be time for Oracle customers to prepare for the resumption of some very aggressive Oracle audits. Some of our readers may be wondering about what I mean by "resumption" as they have probably already been exposed to some very significant brass knuckles audit tactics. It is my opinion that the pendency of this very public case did serve to somewhat moderate Oracle's behavior as it did not want to send any of its customers into the arms of the Plaintiffs' lawyers litigating the Sunrise Firefighters' case. Now that threat is gone and Oracle may feel unbound. Only time will tell. We hope we are wrong. If you are a company being audited by Oracle or think that an audit notice may be imminent, we can help. Please contact us today. By Pam Fulmer
On May 9, 2022, Judge Freeman of the Northern District of California granted the lead Plaintiff's Union Asset Management Holdings AG's Motion for Class Certification in the Sunrise Firefighter's Class Action against Oracle and several members of its senior management. This is certainly bad news for Oracle. Readers of our blog will remember that the class action lawsuit alleges that Oracle and its management committed securities fraud when they omitted to inform the investing public that Oracle's increase in sales of Oracle's cloud software products was fueled in part by predatory audits of Oracle customers, rather than the quality of the Oracle cloud software. Judge Freeman ruled previously that such a theory states a claim for securities fraud by omission. Rather than get into the weeds of the Court's ruling which was a huge win for the Plaintiffs, readers of our blog may be wondering what happens next in the litigation? Often once a class is certified, Defendants will settle the lawsuit rather than proceed to discovery and later trial. It will be very interesting to see whether Oracle settles here or will still continue to litigate the lawsuit. Should the parties continue to litigate, we predict some very interesting discovery disputes as Plaintiffs potentially seek additional discovery on Oracle's predatory audit practices, and Oracle seeks to limit such discovery as much as possible. Should the case not settle, and after taking discovery, class action defendants sometimes move to de-certify the class if Plaintiffs have been unable to support their damages model or other theories through evidence obtained in discovery. So it is possible that Oracle may decide to attack Plaintiffs' case again later after the close of discovery. Oracle customers who under audit by Oracle made cloud purchases to get out from under the audit and alleged large non-compliance findings, may have remedies against Oracle. Our lawyers at Tactical Law advise Oracle customers regarding potential claims they may have against Oracle to recoup some of those losses due to past Oracle audit overreaches. The case is Sunrise Firefighters v. Oracle in the Northern District of California. We will continue to monitor the case. Check back for updates. Non-Actionable Puffery or Actionable Fraud: Part II of Our Series on Oracle/Netsuite ERP Litigation4/1/2022 By Pam Fulmer This blog post is the second in our series analyzing litigation that has been brought against NetSuite/Oracle relating to failed ERP installations, and how Oracle has defended those actions and sought to defeat them. And armed with this knowledge, how you, the Oracle/NetSuite customer can try to best protect yourself when negotiating with Oracle. In this post we refer to Oracle and NetSuite interchangeably. In our first blog post we discussed the importance of getting very granular with Oracle concerning the representations Oracle makes to you, the potential customer, about the features and benefits of the ERP software. And the key focus remains on the period of diligence before the license agreement is signed. This is the period when Oracle is wooing the potential customer with statements about the power of its software and how the software can advance the business interests of the customer. We explained how Oracle customers filing lawsuits against Oracle will often claim that Oracle overpromised and under-delivered and that such statements should allow the customer to rescind the Oracle license agreement for fraud in the inducement of the contract. We explained how the Federal Rules of Civil Procedure require that litigants plead fraud with particularity in order for such claims to get past the pleading stage. We also discussed why it is important to make an accurate and detailed account of the various representations made by Oracle/NetSuite. However, even if you are a company that took good notes when meeting with Oracle and can tell a court the who, what, when, where, why and how of the alleged fraud, there is still another hurdle to overcome. Courts do not consider mere “puffery” to be a fraud, and such statements cannot support the recission of a contract for fraud in the inducement or an affirmative fraud claim. A good example is the Grouse River Outfitters. v. NetSuite case litigated in the Northern District of California. Grouse River was a Canadian outdoors sporting goods supply company that entered into an agreement with NetSuite for use of NetSuite’s ERP software to run its business. The claims asserted in Grouse River’s Second Amended Complaint (“SAC”) included fraud and negligent misrepresentation, fraud in the inducement, violation of California’s unfair competition law (Section 17200) and breach of contract. Magistrate Judge Laurel Beeler of the Northern District of California described the basic allegations of the complaint as follows: In 2012, Grouse River began searching for an “integrated software system” that would help its retail operations grow. Grouse River read (and later relied upon) false statements made in NetSuite’s advertising material about its capabilities to implement software solutions. Grouse River later relied on express statements that NetSuite made that it could deliver a software system that would have the capability to meet Grouse River’s requirements. The parties entered into a pair of written contracts in March 2014. The NetSuite system was not installed and operational by its original deadline of September 12, 2014. The system never met its promised capabilities. Under California law, the elements of fraud claim are: (1) a misrepresentation; (2) knowledge of falsity; (3) intent to defraud; (4) justifiable reliance; and (5) resulting damages. The same elements comprise a cause of action for negligent misrepresentation, except there is no requirement of intent to induce reliance. Plaintiff must plead and prove that he or she actually relied on the misrepresentation for both causes of action. NetSuite moved to dismiss the initial complaint for failure to plead fraud with the necessary particularity under Federal Rule of Civil Procedure 9(b). The court granted the motion with leave to amend. After this dismissal, Grouse amended its complaint, which was then the target of another attack by NetSuite. In ruling on this second motion, the court found the fraud in the SAC was pled with sufficient particularity to defeat a motion to dismiss. But NetSuite was persistent and moved to strike some of the allegations of the SAC, claiming among other things, that the representations were non-actionable puffery and could therefore not support a fraud-based claim. Judge Beeler in her order set forth the governing law on puffery. According to the Court: “Statements constituting mere “puffery” cannot support liability under a claim for fraud or negligent misrepresentation. “Puffery” has been described as making generalized or exaggerated statements such that a reasonable consumer would not interpret the statement as a factual claim upon which he or she could rely. Ultimately, the difference between a statement of fact and mere puffery rests in the specificity or generality of the claim. Advertising which merely states in general terms that one product is superior is not actionable. However, misdescriptions of specific or absolute characteristics of a product are actionable. Whether an alleged misrepresentation is a non-actionable statement of puffery is a question of law.” (Citations omitted) The Judge went on to review each alleged fraudulent statement and to make a determination if it was fraud or mere puffery. In explaining her analysis, the Judge Beeler reasoned that “[a] reasonable consumer would not interpret certain statements as a factual claim upon which he or she could rely.” Instead, the statements were generalized and did not concern specific aspects of the product, or how the product could meet the needs of the customer. According to Judge Beeler, examples of statements constituting non-actionable puffery include: • “Every company wants to deliver the commerce experience that Apple delivers to customers—an experience that recognizes the customer regardless of channel or device, and efficiently delivers goods and services in world-class fashion, projecting a powerful brand message. NetSuite SuiteCommerce is architected to enable companies of all sizes to deliver this type of rich, touch-point agnostic experience to their customers.” (SAC ¶ 15).
• “SuiteCommerce exposes native NetSuite commerce capabilities-including merchandising, pricing, promotions, payment processing, support management, and customer management-as services that can be leveraged by any presentation layer, while providing an integrated back-end business management system.”
The order contains additional analysis, and we include a PDF copy of the Order below in case our readers would like to delve further into these issues. So, what are the lessons learned from this blog post? First, advertising materials are only one source of possible false statements by NetSuite/Oracle. If there are certain advertising statements that you are relying on in making your ERP purchase, print out or make a PDF of those materials and have your legal department save them. You can also ask about the statements and get more details in follow-up meetings and conversations with Oracle/NetSuite. Second, statements made in meetings by NetSuite employees about the specific capabilities of the NetSuite software are critical. That is why we recommend recording those statements, or seeing whether NetSuite will commit in writing to the specific qualities of the software, and how it will benefit your business. Again, at least take detailed written notes of all meetings or conversations, and if you decide to make a recording of the meeting, you need to obtain whatever permissions are required under the applicable state law. You must demand that the ERP contractor provide you with granular promises, and not sweeping but empty statements that are mere generalities. And, if they won’t provide such specific statements about the capabilities of their software, perhaps you should reconsider and go to another ERP provider instead. Third, you need to provide all of these materials and develop a very detailed chronology of the NetSuite statements and the series of events to your attorney advising you on the matter. Oracle/NetSuite is a rational beast and if you can show their in-house legal department in pre-litigation settlement discussions, why it behooves them to settle with you without the necessity of filing litigation, then you may be able to avoid a lawsuit all together. Our next blog post in this series will focus on two additional legal arguments that Oracle/NetSuite often makes to defeat fraud-based ERP related claims. The first is that under California law, statements about future events are usually non-actionable, with limited exceptions. The second is that the statements contained in the complaint are not alleged to be false. We have some thoughts on these issues as well. Tactical Law Group LLP is an IP and litigation boutique law firm located in the San Francisco Bay area. We assist clients to negotiate ERP agreements and advise clients on the best strategies for resolving disputes, including prosecuting litigation where appropriate, involving failed ERP implementations. 
By Pam Fulmer and David Woodard
Oracle announced on Sept 14, 2021 that Java 17 and future versions of Java are now free again. In this blog, Pam Fulmer, Partner at Tactical Law Group, and David Woodard, Executive License Consultant at OpsCompass/House of Brick, discuss the technical and legal implications of this announcement. [David]: This announcement often gets misinterpreted as “all Java is now free again”, which is definitely not the case. You need to understand the technical and contractual aspects of this announcement to see if, and how, you may be able to use Java 17+ at no cost. [Pam]: The announcement indicates that Java 17 and later are free under the new "Oracle No-Fee Terms and Conditions" (NFTC) license which allows for “running the Program for Your own personal use or internal business operations". However, the first paragraph of that agreement states: Your use of this Program is governed by the No-Fee Terms and Conditions set forth below, unless you have received this Program (alone or as part of another Oracle product) under an Oracle license agreement (including but not limited to the Oracle Master Agreement), in which case your use of this Program is governed solely by such license agreement with Oracle. Thus, according to its terms, the NFTC would not apply if an Oracle customer already has an Oracle Master Agreement (“OMA”) in place, which contains a Java subscription. This might lead Oracle customers who already have an OMA with a Java subscription to consider terminating the OMA if they want to use the “free” version of Java 17. That of course requires a review of the termination provision of the OMA. Paragraph 6 of the General Terms of the OMA governs termination as it pertains to Oracle programs. However, the clause does not provide for a termination for convenience, for either of the contracting parties. Instead, only a termination for cause due to a material breach that is not cured within 30-days is included in the provision. Therefore, Oracle customers who try to terminate their OMA in order to get the “free” Java 17 may well face pushback from Oracle. However, there may be potential arguments under California law that Oracle customers may be able to use should Oracle claim that the agreement cannot be terminated except for cause. [David]: If you cannot use Java 17 for free because you have an existing OMA, you appear to have two choices: 1) continue to pay for a Java subscription and use Java 17 under that OMA, or 2) attempt to terminate your OMA, which might give rise to a dispute with Oracle. However, assuming that Oracle would not claim an Oracle customer is in breach for terminating the OMA, the Oracle customer would still need to upgrade all current paid subscription versions of Java to Java 17 to use Java 17 for free. The older versions/updates of Java that did not require a subscription would continue to be free for the Oracle customer to use. But, versions/updates that are currently obtained under the OMA subscription would need to be upgraded to Java 17 to eliminate the subscription and to use Java for free. This could be quite an undertaking from a technical perspective, with possible code changes, and extensive regression testing. In this case “free” may have a significant cost for you. A Long Term Support (LTS) version of a product has a specified period of time where it will be supported by the vendor. Thus, customers know that by using an LTS version, they will not be surprised by support ending abruptly at the vendor’s whim. Usually, the support periods for LTS versions will overlap, which gives the customer time to upgrade from one supported version to another. Oracle has updated the release cadence for Long Term Support (LTS) versions of Java to every two years, and the odd numbered versions (17,19, etc) will be the LTS versions. Updates for a given LTS release will be available until one year after the next LTS release date thus giving customers one year of overlap to get upgraded to the next LTS version. Oracle will continue updating some older LTS releases, but you will need to get a subscription to use those updates. The even numbered versions will only be supported for a short time, and often are used by customers to try out new features in non-production environments [Pam]: Oracle updated the Java Frequently Asked Questions (“FAQ”) to state: Oracle will use the NFTC for JDK 17 and later releases. LTS releases, such as JDK 17, will receive updates under this license for one year after the release of the subsequent LTS. After the free use license period, Oracle intends to use the OTN License, the same currently used for Java 8 and 11 LTS releases, for subsequent updates. So, if you are still running an older version of Java 17, for example, that falls under the Oracle Technology Network License Agreement for Oracle Java SE, it does not allow for production use of Java. If you wanted to keep using that older version, or want to update it if Oracle releases new updates for that version, you will need a subscription. (This appears to mean, per the NFTC first paragraph, that Oracle customers would need a subscription for all Java versions, even newer versions like 19, 20, 21, etc., which would normally be free) [David]: So, if you find yourself unable to upgrade off of Java 17 (or later as newer LTS’s roll out), then you are looking at now having to get a Java subscription for your entire Java estate once again. So, the decision to move into the free Java NFTC ecosystem should include a realistic assessment of your team’s capabilities to get upgraded to the newer Java version in a timely manner and stay updated. Conclusion: Unless Oracle comes out and states that you can have free Java 17+ and older subscriptions under an OMA and the new NFTC in use at the same time, the first paragraph of the brand new NFTC would seems to indicate otherwise. By Pam Fulmer
We are going to focus a few blog posts on Oracle and its subsidiary NetSuite, Inc. (“NetSuite”) and some of the litigation that has been brought against these two companies by their unhappy customers. NetSuite was one of the first cloud-based companies in the market, and Oracle acquired the company in 2016. NetSuite started out focusing on financial and accounting systems, then it branched out into Enterprise Resource Planning (“ERP”) and Customer Resource Management (“CRM”) software and eCommerce. NetSuite provides its customers with a subscription-based service and essentially claims that its customers can manage all their key financial and business processes in one solution. NetSuite claims that it is the #1 Cloud ERP Business Software Solution and according to its website that: “NetSuite ERP is an all-in-one cloud business management solution that helps organizations operate more effectively by automating core processes and providing real-time visibility into operational and financial performance. With a single, integrated suite of applications for managing accounting, order processing, inventory management, production, supply chain and warehouse operations, NetSuite ERP gives companies clear visibility into their data and tighter control over their businesses.” NetSuite customers have filed lawsuits against the company often alleging that NetSuite over promises and under delivers. Even before Oracle acquired NetSuite, the company had already been sued by customers claiming that NetSuite failed to deliver a functioning ERP product. In 2014 the Kentwool Company filed suit in South Carolina against NetSuite asserting claims for breach of contract, breach of express and implied warranties, fraud, fraud in the inducement, negligent misrepresentation and breach of South Carolina’s unfair business practices act, among other claims. Kentwool sought to rescind the contract based on fraud in the inducement. NetSuite moved to transfer the case to the Northern District of California due to the venue provision in the Netscape agreement. That motion was granted and the case was transferred to Judge Jon Tigar in the Northern District. According to the Complaint, NetSuite represented that it would integrate all of Kentwool’s “manufacturing, inventory, purchasing, financial, sales and shipping processes” and that the software would include certain advanced features and that any implementation problems would be fixed by NetSuite. Kentwool also contended that NetSuite knew that its software could not do these things when it wrongfully induced Kentwool to enter into the contract. Plaintiffs in other lawsuits filed against NetSuite and Oracle arising out of failed ERP implementations have made similar allegations. We will get into some of those other cases in future blog posts. But for now, we want to focus on some of NetSuite’s key defenses, and common mistakes that NetSuite customers make when asserting fraud-based claims. NetSuite contracts contain integration clauses. In the subscription agreement at issue in the Kentwool case, that clause provided that: “This Agreement, including all exhibits and/or Estimate/OrderForms, shall constitute the entire understanding between Customer and NetSuite and is intended to be the final and entire expression of their agreement. The parties expressly disclaim any reliance on any and all prior discussions, emails, RFP’s and/or agreements between the parties. There are no other verbal agreements, representations, warranties[,] undertakings or other agreements between the parties.” NetSuite, invoking the parol evidence rule, argued that this clause precluded Kentwool from introducing any evidence that varied, altered or added any terms that were not part of the integrated contract, such as representations made by NetSuite during pre-contractual sales and negotiation discussions. The court rejected those arguments and found that the parol evidence rule did not bar such evidence, because the Plaintiff asserted fraud-based claims, including fraud in the inducement and sought to rescind the contract. Having passed this first hurdle, Kentwool ran into another legal buzz saw—the failure to plead fraud with particularity. Federal Rule of Civil Procedure (“FRCP”) 9(b) requires a heightened pleading standard for pleading fraud claims. To satisfy FRCP 9(b), a litigant must identify the who, what, when, where, and how of the alleged fraud such that defendants have notice of the particular misconduct alleged and can defend against it. What does this mean in practice? It means that NetSuite customers who claim fraud must get really specific. Was the fraudulent statement made in a phone call, an email or in a meeting? If the fraudulent claim was made in a meeting or on a call, courts will want to know the date of the meeting, and even the time. Where was the meeting? Who was at the meeting and who from NetSuite made the exact statement at isssue? What was the exact statement? Why was the statement false? All too often litigants are unable to make such a detailed showing because they fail to make an adequate record when they are engaged in pre-contractual discussions with Oracle/NetSuite. And that is a huge mistake. It is an understatement to say that much can go wrong in the implementation of an ERP contract. So, Oracle/NetSuite customers must go into negotiations prepared to make the licensor get really granular on exactly what they are promising. Every time you have a meeting with or get on a phone call with NetSuite pre-contract, you would be well advised to take detailed notes of the meeting, including the date and time, and who attended. Save any emails. You also need to include the exact representations of NetSuite on which you are relying and the identity of the person who made the representation. Press NetSuite for specific information. Ask them to detail the existing capabilities of their software, and what capabilities they will need to customize for you. Write it all down, and send records of these communications to your legal department for safekeeping and use in the event of a dispute down the road. Be proactive. The Kentwool court found the following allegations contained in the Complaint insufficient to plead fraud with the required particularity, and dismissed those causes of action with leave to amend: “Prior to Kentwool entering into the Agreement with NetSuite, NetSuite represented to Kentwool that the Software would integrate the management of Kentwool’s manufacturing, inventory, purchasing, financial, sales and shipping processes, specifically including providing visibility and management of blended products through the manufacturing process. NetSuite further represented to Kentwool that the Software functionality would include, among others, advanced financials, item management, production planning, manufacturing control, cost control, lot and serial control, multi-division/multi-site solutions, and order management. During the implementation process NetSuite represented to Kentwool that it would, and did, correct the problems experienced by Plaintiff so that the Software would perform as originally represented to Kentwool. NetSuite also represented to Kentwool that complete implementation would be achieved on or around October 1, 2013.” This example shows how detailed and granular any fraud-based claims must be pled to survive a motion to dismiss. So, give your lawyers the tools they need in case of any dispute down the line. Make a detailed record of what your needs are, and what NetSuite/Oracle promised it could do. If you can get NetSuite to set forth in writing what they are agreeing to deliver, do so. If they won’t put it in writing, then you need to record it yourself by taking good notes. For Zoom or Teams meetings you can ask NetSuite if you can record the conversation. It is doubtful that they will agree, but it never hurts to ask. If you do decide to record, you need to ensure that you are complying with the applicable law relating to the proper notice required for the recordation of conversations and meetings, in your particular jurisdiction. Once you successfully can provide the granular details of what was promised, you will have another hurdle to overcome. Was it an actual misrepresentation of fact or mere puffery, which is not actionable? We will discuss hurdle number 2 in our next blog post, and what constitutes a material misrepresentation of fact in the context of a NetSuite related lawsuit. We will provide a few concrete examples, which a judge found to be mere non-actionable puffery, and not a false statement of fact. We think you will find this context very helpful in preparing to negotiate your ERP license agreement. Tactical Law is an IP and litigation boutique law firm located in the San Francisco Bay area. We assist our clients to negotiate and document ERP and other licensing agreements. We also assist our clients in resolving disputes that might arise during ERP implementation, or if informal resolution is impossible, we assist our clients to litigate such disputes in courtrooms and in arbitration forums around the nation. |
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