Including Advising on VMware Virtualization Issues and Oracle.
"Oracle Corporation and its subsidiaries, including Plaintiffs Oracle International Corporation and Oracle America, Inc., are notorious around the globe for their predatory audit practices. Essentially, Oracle and its related entities utilize the limited audit rights granted to them under their software license agreements as a tool to improperly drive further sales of Oracle software products."
Tactical Law Group LLP Motion to Dismiss Oracle Complaint for Copyright Infringement and Breach of License Agreement
| 2016-10-13_018_fulmer_wares_motion_to_dismiss_oracle_complaint[5].pdf |
Has your company been the victim of a predatory Oracle software audit? Have you been subjected to Oracle's well known "Audit, Bargain, Close" ("ABC") audit tactics? If so, we can help. Here is how one former Oracle employee (known as Former Employee ("FE") 1 in the Sunrise Firefighter's Class Action Complaint described the way Oracle uses software audits to drive sales of enterprise software:
Former Employee ("FE") 1 "confirmed that the sales teams and LMS closely coordinated to use audits in order to sell unwanted cloud subscriptions. FE 1 also stated that sales would direct LMS to target clients for audit. In particular, FE 1 stated that the sales team would “identify large clients they thought they could get more money out of and threaten them with audits,” instructing LMS to say the Company had suspicions that they were out of compliance. Indeed, FE 1 stated that the sales teams would actually write out the threatening audit letters and give them to LMS to then send to the client. FE 1 stated that frequently, neither sales nor LMS had real evidence that customers targeted for audits were noncompliant, but that the mere threat of an audit would put the customers under so much pressure, because of the enormity of the potential penalties, that customers had no choice but to agree to Oracle’s demands that the client purchase cloud products. FE 1 stated that once the cloud sale was complete, the sales team would tell LMS that the customer had trued up, and LMS would close the file without even following-up with the client (making clear that the audit was initiated as a mere pretext to push the cloud sale through). FE 1 stated that “any statements from Oracle that LMS was independent from sales are a lie.”
Other allegations in the Complaint are also instructive. For example, "[t]o start, Oracle installed its main on-premises products with extra options and management packs enabled by default, but did not inform its customers that these features had been installed and must be disabled in order to avoid license overages. Once a customer fell into this trap, Oracle’s sales and LMS teams worked in a highly coordinated fashion to audit the client for its license violations and push cloud products."
Tactical Law Group LLP has successfully pushed back on these and similar tactics saving our clients millions of dollars in licensing fees. We understand the Oracle audit playbook and use our familiarity with Oracle's audit practices to identify baseless audit findings and areas of overreach. This includes combatting audit findings where Oracle attempts to use non-contractual policy documents to inflate the alleged compliance gap. One such overreach that we commonly see is Oracle's attempted utilization of its non-contractual partitioning policy to inflate VMware virtualization related non-compliance assertions.
Our firm advises clients on a myriad of issues involving the defense of software audits. We have defended such audits on behalf of a number of clients and have particular expertise with defending audits brought by Oracle Corporation and Oracle America, Inc. as well as Quest Software. Often these audits involve advising on issues relating to hosting, the cloud, or Oracle on VMware virtualization. In conjunction with House of Brick, Tactical Law recently presented a Webinar providing tips for Oracle customers needing to navigate through an Oracle audit. Tactical Law Group is also a thought leader on the topic, publishing articles in addition to the firm's blog. Read a recent article on page 4 of the Northern California Oracle Users Group Journal discussing Licensing Oracle Software in Cloud Environments.
Pam was a partner at Arent Fox LLP in the San Francisco office, when the Mars v. Oracle lawsuit was filed in San Francisco Superior Court. Tactical Law Group also defended telecommunications company Cogent Communications, in a lawsuit brought by Oracle in federal court in San Francisco alleging copyright infringement and breach of software license agreement.
Our firm understands and has experience with the relevant California law implicated by Oracle license agreements, and we are able to offer our clients economical and pragmatic advise to resolve their Oracle related licensing issues.
Former Employee ("FE") 1 "confirmed that the sales teams and LMS closely coordinated to use audits in order to sell unwanted cloud subscriptions. FE 1 also stated that sales would direct LMS to target clients for audit. In particular, FE 1 stated that the sales team would “identify large clients they thought they could get more money out of and threaten them with audits,” instructing LMS to say the Company had suspicions that they were out of compliance. Indeed, FE 1 stated that the sales teams would actually write out the threatening audit letters and give them to LMS to then send to the client. FE 1 stated that frequently, neither sales nor LMS had real evidence that customers targeted for audits were noncompliant, but that the mere threat of an audit would put the customers under so much pressure, because of the enormity of the potential penalties, that customers had no choice but to agree to Oracle’s demands that the client purchase cloud products. FE 1 stated that once the cloud sale was complete, the sales team would tell LMS that the customer had trued up, and LMS would close the file without even following-up with the client (making clear that the audit was initiated as a mere pretext to push the cloud sale through). FE 1 stated that “any statements from Oracle that LMS was independent from sales are a lie.”
Other allegations in the Complaint are also instructive. For example, "[t]o start, Oracle installed its main on-premises products with extra options and management packs enabled by default, but did not inform its customers that these features had been installed and must be disabled in order to avoid license overages. Once a customer fell into this trap, Oracle’s sales and LMS teams worked in a highly coordinated fashion to audit the client for its license violations and push cloud products."
Tactical Law Group LLP has successfully pushed back on these and similar tactics saving our clients millions of dollars in licensing fees. We understand the Oracle audit playbook and use our familiarity with Oracle's audit practices to identify baseless audit findings and areas of overreach. This includes combatting audit findings where Oracle attempts to use non-contractual policy documents to inflate the alleged compliance gap. One such overreach that we commonly see is Oracle's attempted utilization of its non-contractual partitioning policy to inflate VMware virtualization related non-compliance assertions.
Our firm advises clients on a myriad of issues involving the defense of software audits. We have defended such audits on behalf of a number of clients and have particular expertise with defending audits brought by Oracle Corporation and Oracle America, Inc. as well as Quest Software. Often these audits involve advising on issues relating to hosting, the cloud, or Oracle on VMware virtualization. In conjunction with House of Brick, Tactical Law recently presented a Webinar providing tips for Oracle customers needing to navigate through an Oracle audit. Tactical Law Group is also a thought leader on the topic, publishing articles in addition to the firm's blog. Read a recent article on page 4 of the Northern California Oracle Users Group Journal discussing Licensing Oracle Software in Cloud Environments.
Pam was a partner at Arent Fox LLP in the San Francisco office, when the Mars v. Oracle lawsuit was filed in San Francisco Superior Court. Tactical Law Group also defended telecommunications company Cogent Communications, in a lawsuit brought by Oracle in federal court in San Francisco alleging copyright infringement and breach of software license agreement.
Our firm understands and has experience with the relevant California law implicated by Oracle license agreements, and we are able to offer our clients economical and pragmatic advise to resolve their Oracle related licensing issues.
|
| ||
BlogFollow our blog for updates relating to relevant issues involving California contract and federal copyright law and how they may impact your software audit defense.
|
Subscribe |
