Oracle Reply Msa 1599529

8/2/2019 Oracle Reply Msa 1599529

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ATTORNEYS AT LAW

SAN FRANCISCO

REPLY IN SUPPORT OF ORACLE CORPORATIONS MOTION FOR SUMMARY ADJUDICATIONCASE NO. 1-11-CV-203163

LATHAM & WATKINS LLPDaniel M. Wall (Bar No. 102580)Alfred C. Pfeiffer, Jr. (Bar No. 120965)Sadik Huseny (Bar No. 224659)

505 Montgomery Street, Suite 2000San Francisco, California 94111-6538Telephone: (415) 391-0600

Facsimile: (415) 395-8095

ORACLE CORPORATIONDorian Daley (SBN 129049)Deborah K. Miller (SBN 095527)

500 Oracle ParkwayM/S 5op7Redwood Shores, California 94065Telephone: (650) 506-5200Facsimile: (650) 506-7114

Attorneys for Defendant and Cross-ComplainantORACLE CORPORATION

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SANTA CLARA

HEWLETT-PACKARD COMPANY,

Plaintiff,

v.

ORACLE CORPORATION,

Defendant.

ORACLE CORPORATION,

Cross-Complainant,

v.

HEWLETT-PACKARD COMPANY,

Cross-Defendant.

CASE NO. 1-11-CV-203163

Action Filed: June 15, 2011Trial Date: May 31, 2012

REPLY IN SUPPORT OF ORACLE

CORPORATIONS MOTION FORSUMMARY ADJUDICATION

Date: May 2, 2012Time: 1:30 PMPlace: Department 1C

Assigned for all Purposes to

The Honorable James P. Kleinberg

E-FILEDApr 23, 2012 4:49 PM

David H. YamasakiChief Executive Officer/Clerk

Superior Court of CA, County of Santa Clara

Case #1-11-CV-203163 Filing #G-42217

By G. Duarte, Deputy


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TABLE OF CONTENTS

I. INTRODUCTION ............................................................................................................. 1

II. ARGUMENT..................................................................................................................... 1

A. HP Has Finally Admitted That It Is Impossible to Reconcile Its

Position With the Concept of a Reaffirmation ................................................... 1

B. HP Cannot Use The Court to Write a Porting Agreement..................................... 3

C. HP Cannot Avoid Summary Adjudication By Claiming aPreference for Ambiguity ...................................................................................... 7

D. HPs Contention That It Was Unable to Tell Its Own Executiveand Employees About the Porting Agreement Is Spurious................................ 9

III. CONCLUSION................................................................................................................ 10

E-FILED: Apr 23, 2012 4:49 PM, Superior Court of CA, County of Santa Clara, Case #1-11-CV-203163 Filing #G-42217


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TABLE OF AUTHORITIES

CASES

California Lettuce Growers v. Union Sugar Co.,

45 Cal. 2d 474 (1955) ............................................................................................................. 4

Forecast Homes, Inc. v. Steadfast Ins. Co.,181 Cal. App. 4th 1466 (4th Dist. 2010)................................................................................. 3

Magna Dev. Co. v. Reed,

228 Cal. App. 2d 230 (1st Dist. 1964).................................................................................... 3

Steller v. Sears, Roebuck & Co.,

189 Cal. App. 4th 175 (2d Dist. 2010).................................................................................... 9

Weddington Prods. v. Flick,

60 Cal. App. 4th 793 (2d Dist. 1998)...................................................................................... 4

White Point Co. v. Herrington,

268 Cal. App. 2d 458 (2d Dist. 1968)..................................................................................... 4

Winet v. Price,4 Cal. App. 4th 1159 (4th Dist. 1992)..................................................................................... 9

Wolf v. Walt Disney Pictures & Television,162 Cal. App. 4th 1107 (2d Dist. 2008)................................................................................ 10

STATUTES

California Civil Code 1643.................................................................................................... 4, 7



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I. INTRODUCTIONThe problem with making an argument like HPs in this case is that it eventually catches

up to you. Under stress the logic falls apart, forcing you to take positions that are so plainly

wrong that no one can believe you any longer. HP first reached that point when it claimed that

Oracle rejected specific porting commitments only because it wanted broad and undefined

ones instead. But in opposition to Oracles Motion for Summary Adjudication, HP repeatedly

passes beyond the limits of reason. It argues:

Paragraph 1 of the Hurd Settlement Agreementwhich HPs Complaint refers tonine times as a reaffirmationas a whole, does notconstitute[] areaffirmation. HP Opp. to Oracle Mot. for Summ. Adj. (HP Opp.) at 14.

The reason that no one in HPs Business Critical Systems (BCS) unit knew thatthis was a porting or product support agreement was because the settlement wasconfidentialeven though the confidentiality clause explicitly assumes that

employees will be told, asthey would have to be to perform the contract. Id. at 28. The Court can fill in the many gaps in the contract based on the parties course

of dealing, including their previous formal porting agreementseven though everyporting agreement the parties have executed or even proposed would bar HPs lostprofits damages. Id. at 26.

Because [h]ere, the course of dealing establishes a multi-year practice of portingOracle software to HP servers without written contracts . . ., [t]his course of dealingcreated an implied contract . . . . Id. at 29.

HPs arguments are losing all touch with commercial reality. They ask this Court to

ignore the way that rationally self-interested actors behave, to reverse the usual inferences arising

from terms that are proposed yet rejected, and to disregard the concept of reaffirmation that up

to HPs last brief defined this dispute. And thenbecause all that doesnt get HP to where it

needs to beHP would have this Court write the contractthat Oracle indisputably refused to

enter by independently supplying every significant term of this alleged porting agreement, such

as its scope, performance standards, payment terms and duration. This is not the role of a court.

Courts interpret and enforce contracts; they do not write them for the parties.

The briefing has already covered most issues thoroughly, so we limit this Reply to four

points concerning HPs express contract claim.

II. ARGUMENTA. HP Has Finally Admitted That It Is Impossible to Reconcile Its

Position With the Concept of a Reaffirmation

HP has now fully embraced the logical result of its ten-month effort to divorce the part of



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Paragraph 1 of the Hurd Settlement Agreement (the Reaffirmation Provision) that it likes from

the rest of the provision. It states that the paragraph as a whole, does notconstitute[] a

reaffirmation. HP Opp. at 14:9 (emphasis and alteration in original). This position is

spectacularly candidand plainly irreconcilable with the text of a paragraph that reads:

Reaffirmation of the Oracle-HP Partnership. Oracle and HPreaffirmtheir commitment to their longstanding strategic relationship and theirmutual desire to continue to support their mutual customers. Oraclewill continue to offer its product suite on HP platforms, and HP willcontinue to support Oracle products (including Oracle EnterpriseLinux and Oracle VM) on its hardware in a mannerconsistent withthat partnership as it existed prior to Oracles hiring of Hurd.

The term is called a reaffirmation, it consists of a reaffirmation, it was announced to the

world in the parties press release as a reaffirmation, and HPs Complaint refers to it as a

reaffirmation nine times. Compl. 4, 7, 10, 29 (twice), 31, 32, 33 & 79. HP has been trying to

shoehorn its case into the reaffirmation rubric for ten months. For HP to now deny that

Paragraph 1 is a reaffirmation is not just advocacy; it is an act of historical denial. We certainly

understand HPs predicament: new, prospective obligations are not created by reaffirmation. But

that is no excuse for reading the concept out of the agreement.

HP makes this point while complaining about Oracles reference to Paragraph 1s title

(Reaffirmation of the Oracle-HP Partnership). We disagree that the title becomes irrelevant

because of Paragraph 20 of the Agreement (as we suspect HP would if the title read, Perpetual

Unpaid Porting Commitment). But to simplify matters let us assume the title does not exist.

The fact remains this was conceived as a reaffirmation, proposed to Oracle as a reaffirmation,

and routinely referred to during negotiations as a reaffirmation; and both the first sentence of

Paragraph 1 and the press release that announced the settlement explicitly use the words

reaffirm and reaffirmed. HPs Sep. Stmt. of Disputed and Undisputed Mat. Facts In Opp. to

Oracles Mot. for Summ. Adj. (Facts) O-29, O-32, O-43, O-44; Oracle Evidentiary

Objections 10 (re Facts O-29). Oracles point thus does not rest[] on the title of

Paragraph 1, cf. HP Opp. at 14:2, but on an undisputed string of facts proving that the

overarching purpose of this provision was to reaffirm the relationship that was, not change it.



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We have already addressed HPs argument that the second sentence would be illusory

unless construed as something more than a reaffirmation. See Oracle Opp. to HP Mot. for Summ

Adj. (Oracle Opp.) at 13-15.1 As for HPs argument that it rejected Oracles first draft of the

Reaffirmation Provision because it referenced existing contractual commitments, that claim

yet againignores the draft and email that followed. Oracle did not relent and accept HPs

proposal to have the reaffirmation . . . include a porting commitment; Dorian Daley wrote back

that this clause was intended to reaffirm and continue the existing relationship and not to put HP

in a better position that it currently enjoys or result in the negotiation of a new contractual

commitment. Facts O-34 (emphasis supplied). Oracle agreed to a reaffirmation, not more.

B. HP Cannot Use The Court to Write a Porting AgreementHP has now been forced to admit that the fuzzy, feel-good language in the Reaffirmation

Provision would fail as a porting contract on its ownunless the Court supplies numerous

detailed terms inferred from the parties course of dealing. HP acknowledges that it wants the

Courtto determine the scope, payment and duration terms that govern Oracle, proposing rules

like (i) the 9 products listed in Exhibit A are the ones that Oracle must port, (ii) since paying

Oracle to port in the past was the exception rather than the rule, Oracle is now entitled to no

payment at all, and (iii) the duration of the contract is as long as HP and Intel continue to offer

Itanium. See HP Opp. at 24-27; id. at 4:5-7 (inviting the Court to decide how long Oracles

obligation should continue). There is no evidence whatsoever that Oracle agreed to anything

like this. Indeed, it is undisputed that Oracle rejected proposals that would have encompassed

most if not all of these obligations. Facts O-33, O-34, O-40. Thus, if the Court were to go

down this path, it would be writing the very contract that Oracle rejected.

It is black-letter law that courts will not write contracts for the parties. Magna Dev. Co.

v. Reed, 228 Cal. App. 2d 230, 240 (1st Dist. 1964); Forecast Homes, Inc. v. Steadfast Ins. Co.,

1 HP also claims that because Paragraph 15 separately obligates the parties to issue the press releasethat reaffirmed the partnership publicly, Paragraph 1 cannot also serve a public relations purpose.This is baseless. The draft agreement used separate clauses for the press release and reaffirmationbefore the supposedly obligatory language HP relies on was added. See Facts O-32; Wall Decl. Ex29 (Sept. 11 draft).HPs Ann Livermore has also admitted that the Reaffirmation Provision itselfhada public relations purpose. See Fox Decl. Ex. 1 (Livermore Dep. at 70:11-23).



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181 Cal. App. 4th 1466, 1476 (4th Dist. 2010) (We do not have the power to create for the

parties a contract they did not make and cannot insert language that one party now wishes were

there.). To be sure, filling in gaps in contracts is, in limited circumstances, a proper judicial

functionbut that circumscribed authority does not put courts into the business of deal-making.

In narrow instances, when the parties have already signed onto a bargain sufficiently defined to

be a contract, courts can avoid vitiating the parties original intent to be bound by supplying a

generally reasonable term, ascertainable by some objective standard, to fill an essential hole in

their agreement. See Restatement (2d) of Contracts 204; Weddington Prods. v. Flick, 60 Cal.

App. 4th 793, 811-13 (2d Dist. 1998). A court may not, however, use gap-filling to save an

alleged agreement that is nototherwise sufficiently defined to be a contract. Restatement (2d)

of Contracts 204. The size of the gaps of course matters to this calculus; when the gaps are

in fact chasms, the contract either fails or requires a narrower construction. Weddington, 60 Cal.

App. 4th at 813 (The more important the subject matter to be agreed upon, the more likely it is

that the uncertainty will prevent or hinder enforcement.); see Cal. Civ. Code 1643.2

Importantly, where material missing terms are incapable of ascertainment by reference to an

objective standard, gap-filling cannot be used to supply them. White Point Co. v. Herrington,

268 Cal. App. 2d 458, 466 (2d Dist. 1968).

Here, HP is not asking the court to address minor matters of the sort contemplated in

Weddington, or to embark on a limited inquiry like the one undertaken in California Lettuce

Growers v. Union Sugar Co., 45 Cal. 2d 474 (1955)the case HP cites as particularly

instructive. HP Opp. at 23:16. InLettuce Growers, there was no doubtnot even any dispute

that the parties both wanted to enter into a growing agreement whereby California Lettuce would

deliver its 1949 crop of sugar beets to Union Sugar. But when a dispute arose over the price for

the produce, California Lettuce tried to get out of the deal by claiming the absence of a price term

2The Restatement suggests as an illustration of this a building contract which is definite in allparticulars except for a provision that the form of window fastening shall be afterwards be agreedupon. . . . This would not make the entire building contract unenforceable; by contrast, if the nature ofthe window fastenings was fixed by the agreement while the dimensions of the building were left tofuture agreement, there would be no enforceable obligation. Obviously, the question is one of degree.

Weddington, 60 Cal. App. 4th at 813 (quoting 1 Williston on Contracts (4th ed. 1990) 4:28).



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rendered the contract unenforceable. The Supreme Court would not allow that opportunism, and

held that where industry-standard practices and the parties own prior contracts established a flat

price per ton of beets graduated on the basis of their sugar content, the contractual commitment

could not be avoided. See Lettuce Growers, 45 Cal. 2d at 483.

HP is not asking the Court to figure out the prevailing price of beets. It is asking the

Court to create numerous material contract terms and draft a highly technical agreement from

scratch. The following is a non-comprehensive list of the contract terms the Court would have to

devise in order to permit this case to go forward:

Terms from porting agreements. Each of Oracle and HPs past porting agreements

contains numerous terms that the parties negotiated. For example, the agreements define the

precise products to be ported, sometimes with exclusions (e.g.,Facts O-1; Wall Decl. Ex. 21 at

1.b); the platform to which the software will be ported ( id.); performance criteria (id. at 4.b);

intellectual property rights in the ported works (id. at 8); the amount of money that HP has to

pay Oracle for its porting efforts, both for the initial port and maintenance (id. at Attach. D); the

equipment that HP is to make available to Oracle to carry out the port, and what Oracle can and

cannot do with such equipment (id. at 3.a, 4.g; Attach. A, A1); public statements expressing

commitment to the platform (id. at 5.c); the project management structure of the porting effort

(id. at 3.b, 4.b; Attach. B); and numerous standard contractual terms including limitations of

liability (id. at 10). See also Facts O-3-13; Wall Decl. Ex. 22-24. Who knows whether

Oracle or HP would have agreed to the same versions of those terms when trying to wrap all

porting obligations covering all Oracle products and all HP platforms into one agreementbut

they surely would have addressed them. The Court cannot do all that work for the parties.

A term defining the duration of Oracles porting obligations. HP admits that duration

is a critical missing term, but says it is a judicial responsibility to determine how long Oracle mus

port its software to HP-UX. HP Opp. at 4:3-4. This is a potentially dispositive issue in this case,

and at the very least has a profound effect on damages. HP is complaining only aboutfuture

software. If the duration is short, so that the contract expires before Oracle releases such softwar



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Oracle would not be in breach.3 Plaintiffs damages expert has already admitted that if Oracle is

required to port only one more version of its software, he would have to revise his damages claim

Fox Decl. Ex. 2 (Orszag Dep. at 129:8-135:14). The market consequences of a short porting

commitment, leading to an earlier end of life, are likely indistinguishable from the status quo.

The Court cannot just pick a term for this obligation. Any period it selected would be arbitrary, a

HPs proposed life of the platform term certainly is. Incredibly, it is based on HPs agreement

with Intelclearly not part of the Oracle-HP partnership. HP Opp. at 27 n.5.

A term defining Oracles duty to issue software updates and patches. HP contends

that Oracle breached the Reaffirmation Provision by impermissibly departing from its past

practice with respect to fixing bugs in the software it has already released to the public. Compl.

67. It remains a mystery where, precisely, HP thinks the Court should look to determine the

required frequency, form, efficacy, pricing, duration, scope, and punctuality of the software fixes

that HPs interpretation of the Reaffirmation Provision mandates.

A term defining the range of prices that Oracle can permissibly charge customers

for its products. HP contends that Oracle breached the contract with its December 1, 2010

change to the core factor that determines how many licenses a customer must buy to run

Oracle database software on HP (and other) platforms. See Compl. 60-61, 67. The

Reaffirmation Provision says nothing about what prices Oracle can charge its customers. Nor

have the parties ever had a contract constraining Oracles pricing. HP has given no indication

how the Court would identify, from their twenty-five-year course of dealing, what range of

prices the parties intended to limit Oracle to charging when they drafted this agreement.

Remedies provisions. Every porting agreement that Oracle and HP have ever entered or

contemplated addressed numerous commercial terms that sophisticated parties consider, and ever

one contained a limitation of liability clause that specifically prohibited claims for lost profits:

3To illustrate, if the Court decided that the duration of Oracles porting commitment should becomparable to the duration of the other limited commitments in the Hurd Settlement Agreement, theporting commitment would already have expired. See Hurd Settlement Agreement 3 (imposing asix-month term); 4 (six-month term); 7 (eighteen-month term). Each of the parties past portingagreements has also had a limited term. See, e.g., Facts O-8, O-13.



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Limitation of Liability: NEITHER PARTY SHALL BE LIABLEFOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVEOR CONSEQUENTIAL DAMAGES, OR ANY LOSS OFPROFITS, REVENUE, DATA OR DATA USE. EACHPARTYS MAXIMUM LIABILITY FOR ANY DAMAGESARISING OUR OF OR RELATED TO THIS AGREEMENTSHALL BE LIMITED TO THE TOTAL FEES ACTUALLY

PAID BY EITHER PARTY UNDER THIS AGREEMENT.

See Facts O-1, O-3, O-4, O-9; Wall Decl. Ex. 21 at 10.b, 22 at 10.b, 23 at 10.b, 24 at

10.b. As we have separately advised the Court, applying the parties course of dealing

consistently would mean that HPs only damages claimfor lost profits supposedly caused by

Oracles breach of the alleged porting commitmentis barred.

In the end, the Court need not confront any of these issues. The proper inference to draw

from the parties sometimes-contractual but mostly voluntary porting history is that the

Reaffirmation Provision preserves the discretion they have historically had. See Oracle Opp. at

15-16. Their long course of dealing is not raw material from which the Court can fashion a

contract they have been willing to make themselves only occasionally. The absence of all of

these material deal terms simply confirms that the parties could not have intended for the

Reaffirmation Provision to impose the obligations HP now claims. A narrower interpretation

that uses the parties chosen language is required as a matter of law. Cal. Civ. Code 1643.

C. HP Cannot Avoid Summary Adjudication By Claiming a Preferencefor AmbiguityHPs most desperate argument is its effort to convince the Court that Ann Livermores

testimony creates a fact dispute that only a jury can resolve. HP Opp. at 21:28-22:5. We have

already addressed this at pages 9-13 of Oracles Opposition to HPs MSA, but briefly, HPs

claim is that Oracle co-President Safra Catz told Ms. Livermore that Oracle intended to take on a

generalizedobligation to port its product suite to HP platforms indefinitely, but was unwilling to

negotiate more specific (and thus narrower) obligations to port identified products on limited

terms. HP Opp. at 16:16-17. This supposedly explains, without destroying HPs case, why all

the contemporaneous documentary evidence shows that Oracle rejected every effort HP made to

insert porting and pricing commitments into the Reaffirmation Provision.



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Now that we have seen the full version of this argument, the one additional point we can

make is thatMs. Livermores testimony does not say what HP claims that it says. Each excerpt

from Ms. Livermores deposition that HP has proffered says nothing more than that Ms. Catz

promised that the parties business relationship generally would be unchanged by Oracles

hiring of Mr. Hurd. Not a single line of testimony from Ms. Livermore goes further than that.

What Ms. Livermore said (with admirable consistency) is that Ms. Catz said Oracle

would continue with the existing business practices that were in place before the hiring of Mark,

it would be a continuation of the business relationship as it existed before the hiring of Mark,

and we would continue with the relationship in the same manner as what existed before the

hiring of Hurd. HP Opp. at 6:14-26. None of these statements by Ms. Catz mentions or

promises porting or pricing protection, let alone states that everything the parties had done

together in their twenty-five year course of dealing would become newly obligatory. But to each

of these statements by Ms. Catz, Ms. Livermore then addedthat she understoodMs. Catz to

include in her statements the porting of their products and us getting competitive pricing or

words to that effect. Id. And in every case, that is because Ms. Livermore claimed that, to her,

these were defining characteristics of the partnership.4

However, Ms. Livermoredespite many opportunitiesdid notsay that Ms. Catz told

her that porting and pricing commitments were what Oracle meantby its promise to continue the

existing business relationship. Nor could she. At her deposition, she specifically acknowledged

that she and Ms. Catz did not discuss whether the Reaffirmation Provision would expand the

scope of Oracles porting duties relative to what was in the parties existing, limited, porting

agreements (Fox Decl. Ex. 1 (Livermore Dep. at 107:24-108:6)); she specifically acknowledged

that she and Ms. Catz did not discuss whether the Reaffirmation Provision would constrain

4 Ms. Livermore employs the same technique of adding her spin to an innocuous statement by Ms. Catzwhere she claims that Safras feedback to me was that she preferred that we not try to include all thespecifics and details. . . . I agreed that was probably correct, because we had such a broad, deep,expansive relationship, [and thus] we could never document all the details associated with it. SeeFacts H-8 (alterations in HP citation). It is absolutely true that Ms. Catz was unwilling to negotiatespecific business commitments with all the necessary details. But what is missing from Ms.Livermores statement is anything indicating that Ms. Catz wanted to make a general yetcontractually binding porting commitment.



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Oracles discretion to set market prices for its products (id. at 110:21-111:2); and she pointedly

refused to testify that porting had come up at all in her conversation with Ms. Catz ( id. at 107:24-

109:2) (Q. Did you ever have a conversation with Ms. Catz in which you told her that Oracles

discretion as to when it would port software to HP platforms . . . would be lessened if they

entered into this contract? A. I had a conversation with Safra that Oracle would continue the

existing business practices that were in place before the hiring of Mark.).

This is a classic case of presenting an alleged private understanding of a contract as

extrinsic evidence of the parties intentions. But Ms. Livermores private understanding is

irrelevant to the interpretation of the Reaffirmation Provision as a matter of law. SeeSteller v.

Sears, Roebuck & Co.,189 Cal. App. 4th 175, 185 (2d Dist. 2010) (The parties undisclosed

intent or understanding is irrelevant to contract interpretation.) (citation omitted). Perhaps it is

true that Ms. Livermore thought porting was implicit in any reaffirmation. The facts remain

undisputed that (a) Ms. Catz did not say that, and (b) Oracle twice rejected written porting

proposals. Furthermore, HPs second effort at a porting obligation was one sentence totaling 37

words. Facts O-37. It was hardly detailed. Oracle rejected its content, not its length. Id. O-

39. Under these circumstances summary adjudication remains appropriate. See Winet v. Price, 4

Cal. App. 4th 1159, 1166 n.3 (4th Dist. 1992) (rejecting effort to create a jury issue with

testimony of undisclosed interpretation: While this subjective intent evidence was conflicting,

it was not competent extrinsic evidence, because evidence of the undisclosed subjective intent of

the parties is irrelevant to determining the meaning of contractual language.) (citation omitted).

D. HPs Contention That It Was Unable to Tell Its Own Executive andEmployees About the Porting Agreement Is Spurious

The final issue we will address is HPs answer to the fact that Martin Fink, the HP Senior

Vice President who runs the multi-billion dollar BCS business and was personally involved in

the Hurd settlement process (Wall Decl. Ex. 6 (Fink Dep. at 31:8-33:21; 133:4-20)), had no idea

that the Reaffirmation Provision imposed any obligations onHP to support the Oracle products

specifically named in the provision and therefore was not planning to do so. See Oracle Mem. in

Supp. of Mot. for Summ. Adj. at 25-26. That concession means there is no chance that HP



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actually dischargedany such obligation, which by itself bars HPs claim. It is also powerful

course-of-performance evidence, because if the man charged with performing on the agreement

for HP, and receiving the benefits of Oracles performance, does not even know about it, how

could this be a real product support and development contract?

HPs explanation for why Mr. Fink didnt know about this supposed product support

agreement is nothing short of jaw-dropping: The Settlement Agreement was negotiated by HPs

most senior executives, and had a provision requiring confidentiality. Thus, it was not disclosed

to HP employees, including Mr. Fink. HP Opp. at 28:7-9. Paragraph 16 the Hurd Settlement

Agreement says, the terms and nature of this Agreement shall remain confidential and shall not

be disclosed by the Parties, or the executives, agents, attorneys employees or members of the

Board of Directors of Oracle and HP[.] It thus specifically contemplates that executives like

Mr. Fink and other employees of the parties will know about the terms and nature of the

contract. Besides, they have to know in order to execute the contracta point Ms. Livermore

made about Mr. Finkin particular: [H]e had to go back the next day and work. You know, he

had to know what was agreed or what wasnt agreed. Fox Decl. Ex. 1 (Livermore Dep. at 182).

This is Oracles point: the fact that Mr. Fink and his staff, by their own admission, did not

know about this so-called porting and product support agreement, or that they were allegedly

bound to support Oracle Enterprise Linux, is not consistent with HPs claim that this is a genuine

porting and product support agreement. HP did not behave as if this reaffirmation was that

kind of agreement, and no one in the BCS unit made any effort to perform HPs alleged

obligations. The Court has every right to draw the inevitable conclusion. Wolf v. Walt Disney

Pictures & Television, 162 Cal. App. 4th 1107, 1134 (2d Dist. 2008).

III. CONCLUSIONOracle respectfully asks the Court to grant Oracles Motion for Summary Adjudication.

Dated: April 23, 2012 LATHAM & WATKINS LLP

By: /s/ Daniel M. WallDaniel M. WallAttorney for ORACLE CORPORATION


Oracle Reply Msa 1599529

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