HP Summary Motion

1 GIBSON, DUNN & CRUTCHER LLP ROBERT E. COOPER (SBN 35888)

2 [email protected] SAMUEL G. LIVERSIDGE (SBN 180578)

3 [email protected] 333 South Grand Avenue

4 Los Angeles, California 90071-3197 Telephone: 213.229.7000

5 Facsimile: 213.229.7520

6 BARTLIT BECK HERMAN PALENCHAR & SCOTT LLP MARK E. FERGUSON (pro hac vice)

7 [email protected] SEAN W. GALLAGHER (pro hac vice)

8 [email protected] 54 West Hubbard Street, Suite 300

9 Chicago, Illinois 60654 Telephone: 312.494.4400

10 Facsimile: 312.494.4400

11 Attorneys for Plaintiff and Cross-Defendant, HEWLETT-PACKARD COMPANY

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SANTA CLARA

15 HEWLETT-PACKARD COMPANY,

16 Plaintiff,

17 v.

18 ORACLE CORPORATION,

19 Defendant.

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21 ORACLE CORPORATION,

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23 v.

Cross-Complainant,

24 HEWLETT -PACKARD COMPANY,

Cross-Defendant.

CASE NO.: 1-11-CV-203163

Action Filed: Trial Date:

June 15,2011 May 31, 2012

HEWLETT-PACKARD COMPANY'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION ON ORACLE CORPORATION'S CROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

[SEPARATE STATEMENT OF UNDISPUTED FACTS AND DECLARATION OF JAMES 1. ZELENA Y JR. FILED UNDER SEPARATE COVER]

Assigned For All Purposes To The Honorable James P. Kleinberg

Hearing Date: April 30, 2012 Time: 9:00 a.m. Dept.: 1C

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28 PUBLIC REDACTED VERSION Gibson, Dunn & Crutcher LLP HP'S MOTION FOR SUMMARY JUDGMENT AND/OR ADJUDICATION ON ORACLE'S CROSS-COMPLAINT

CASE NO.: 1-11-CV-203163

1 TO THIS COURT, ALL PARTIES, AND TO THEIR ATTORNEYS OF RECORD:

2 PLEASE TAKE NOTICE that on April 30, 2012, at 9:00 a.m., or as soon thereafter as the

3 matter may be heard by this Court, located at 191 N. First Street, San Jose, California 95113, Plaintiff

4 and Cross-Defendant Hewlett-Packard Company ("HP") will and hereby does move the Court

5 pursuant to Civil Procedure Code section 437c for summary judgment and/or summary adjUdication

6 of Defendant and Cross-Complainant Oracle Corporation's ("Oracle") cross-claims for violations of

7 the Lanham Act (15 U.S.C. § 1501 et seq.) (First Cause of Action), the False Advertising Law (Bus.

8 & Prof. Code, § 17500 et seq., "F AL") (Second Cause of Action), the Unfair Competition Law (Bus.

9 & Prof. Code, § 17200 et seq., "UCL") (Third Cause of Action), and defamation-libel (Fourth

10 Cause of Action).l

11 The grounds for this Motion, set forth in greater detail in the attached Memorandum of Points

12 and Authorities and accompanying papers, which are incorporated herein in full by this reference, are

13 that: (1) Oracle's alleged theory of "non-disclosure"-Le., that HP was under some sort of duty or

14 obligation to disclose its confidential development agreement with Intel-is without support in the

15 facts or the case law, and does not provide a basis for Oracle's claims; (2) the alleged "false

16 statements" identified by Oracle are non-actionable puffery, and those statements that are verifiable

17 are indisputably true; (3) Oracle's claim under the UCL fails for the additional reason that the

18 undisputed facts do not establish any "unlawful" or "unfair" business practices; (4) the allegedly

19 defamatory statements upon which Oracle relies are not "objectively verifiable" and therefore are not

20 actionable; and (5) Oracle cannot prove causation or injury as a result of any ofHP's alleged

21 statements or non-disclosures.

22 This Motion is based on this Notice of Motion and Motion; the accompanying Memorandum

23 of Points and Authorities, Separate Statement of Undisputed Material Facts, Declaration of James L.

24 Zelenay, Jr., and supporting exhibits; all pleadings and records on file in these proceedings; all

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Gibson, Dunn & Crutcher LLP

I This Motion addresses all of Oracle's remaining cross-claims, because Oracle has agreed to voluntarily dismiss its Fifth Cause of Action for intentional interference with contractual relations and its Sixth Cause of Action for intentional interference with prospective economic advantage, and this Court previously dismissed Oracle's Seventh Cause of for Fraud / Equitable Rescission.

1 HP'S MOTION FOR SUMMARY JUDGMENT AND/OR ADJUDICATION ON ORACLE'S CROSS-COMPLAINT

CASE NO.: 1-11-CV-203163

1 matters of which judicial notice may be taken; and on such other evidence and argument as may be

2 presented to the Court before or during the hearing on this Motion.

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4 DATED: March 26,2012

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GIBSON, DUNN & CRUTCHER LLP

BARTLIT BECK HERMAN PALENCHAR & SCOTT LLP

By: /s/ Samuel G. Liversidge Samuel G. Liversidge

Attorneys for Plaintiff and Cross-Defendant, HEWLETT -PACKARD COMPANY

2 Gibson, Dunn & Crutcher LLP HP'S MOTION FOR SUMMARY JUDGMENT AND/OR ADJUDICATION ON ORACLE'S CROSS-COMPLAINT

CASE NO.: l-Il-CV-203163 .

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TABLE OF CONTENTS

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

II. FACTUAL BACKGROUND .................................................................................................. 2

A. HP's Roadmap And Its Relationship With InteL ........................................................ 2

B. Oracle's Announcement That It Was Discontinuing Development For Itanium ......................................................................................................................... 4

7 III. LEGAL STANDARD .............................................................................................................. 6

8 IV. ORACLE'S FALSE ADVERTISING CLAIMS FAIL ........................................................... 6

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A.

B.

C.

D.

HP Had No Obligation To Disclose The Details OfIts Agreement With Intel .............................................................................................................................. 6

Oracle Cannot Establish That Any Of The Statements Were False Or Misleading .................................................................................................................... 8

1. Oracle Cannot Base Its Claims On Non-Actionable Opinion Statements ............................................................................................................. 9

2. Oracle Also Cannot Base Its False Advertising Claims On Truthful Statements Reporting The Extended Roadmap For Itanium ............................... ll

Oracle Cannot Establish That It Has Suffered, Or Is Likely To Suffer, Any Injury Caused By The Alleged Misstatements Or Omissions ........................... 15

HP Is Entitled To Summary Judgment On The UCL and F AL Claims For Other Reasons ...................................................................................................... 17

18 V. THE UNDISPUTED FACTS BAR ORACLE'S DEFAMATION CLAIM ......................... 18

19 VI. CONCLUSION ...................................................................................................................... 20

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Gibson, Dunn & Crutcher LLP' HP'S MOTION FOR SUMMARY JUDGMENT AND/OR ADJUDICATION ON ORACLE'S CROSS-COMPLAINT

CASE NO.: 1-11-CV-203163

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TABLE OF AUTHORITIES Page(s)

Cases Air Turbine Tech., Inc. v. Atlas Copco AB,

(Fed. Cir. 2005) 410 F.3d 701 .................................................................................................. 15

American Med Systems, Inc. v. Biolitec, Inc., (D.Mass. 2011) 774 F.Supp.2d 375 ......................................................................................... 16

Belton v. Comcast Cable Holdings, LLC, (2007) 151 Cal.App.4th 1224 .................................................................................................. 14

Bracco Diagnostics, Inc. v. Amersham Health, Inc., (D.N.J. 2009) 627 F.Supp.2d 384 ............................................................................................ 15

Cairns v. Franklin Mint Co,. (C.D.Cal. 2000) 107 F.Supp.2d 1212

affd. (9th Cir. 2002) 292 F.3d 1139 ......................................................................................... 14

Cel-Tech Commc 'ns, Inc. v. Los Angeles Cellular Tel. Co., (1999) 20 Cal.4th 163 ........................................................................................................ 17, 18

Chavez v. Whirlpool Corp., (2001) 93 Cal.App.4th 363 ...................................................................................................... 18

Clemens v. DaimlerChrysler Corp., (9th Cir. 2008) 534 F.3d 1017 .................................................................................................... 7

Coastal Abstract Serv., Inc. v. First Am. Title Ins. Co., (9th Cir. 1999) 173 F.3d 725 ...................................................................................................... 9

Conroy v. Regents of Univ. of Cal. (2009) 45 Cal.4th 1244 .............................................................................................................. 6

Consumer Advocates v. Echostar Satellite Corp., (2003) 113 Cal.App.4th 1351 .................................................................................................... 9

Cook, Perkiss & Liehe v. N Cal. Collection Serv., Inc., (9thCir.1990)911 F.2d242 ................................................................................................ 9,14

Couch v. San Juan Unified School Dist., (1995) 33 Cal.App.4th 1491 .................................................................................................... 20

Daugherty v. Am. Honda Mot. Co., Inc., (2006) 144 Cal.App.4th 824 ...................................................................................................... 7

Eisenberg v. Alameda Newspapers, Inc., (1999) 74 Cal.App.4th 1359 .................................................................................................... 19

Express, LLC v. Fetish Grp., Inc., (C.D.Cal. 2006) 464 F.Supp.2d 965 ........................................................................................ 17

Fla. Breckenridge, Inc. v. Solvay Pharm., Inc., (S.D.Fla., Mar. 18, 1998, No. 97-8417) 1998 WL 468753 ..................................................... 15

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HP'S MonON FOR SUMMARY JUDGMENT AND/OR ADJUDICA nON ON ORACLE'S CROSS-COMPLAINT CASE NO.: 1-11-CV-203163

1 Franklin v. Dynamic Details, Inc., (2004) 116 Cal.App.4th 375 .................................................................................................... 18

2 Good Gov't Group of Seal Beach, Inc. v. Superior Court,

3 (1978) 22 Cal.3d 672 ............................................................................................................... 20

4 Gregory v. McDonnell Douglas Corp., (1976) 17 Cal.3d 596 ......................................................................................................... 19,20

5 Harper House, Inc. v. Thomas Nelson, Inc.,

6 (9th Cir. 1989) 889 F.2d 197 .................................................................................................... 16

7 In re Century 21-RElMAX Real Estate Adver. Claims Litig., (C.D.Cai. 1994) 882 F.Supp. 915 ............................................................................................ 16

8 In re Tobacco II Cases,

9 (2009) 46 Cal. 4th 298 .............................................................................................................. 16

10 Intertape Polymer v. Inspired Techs., Inc., (M.D.Fla. 2010) 725 F.Supp.2d 1319 ...................................................................................... 10

11 Johnson v. Tellabs, Inc.,

12 (N.D.IlI. 2003) 262 F.Supp.2d 937 .......................................................................................... 10

13 K&N Eng 'g, Inc. v. Spectre Perf . (C.D.Cal., Sept. 20,2011, No. 09-01900),2011 WL 4387094 ................................................. 7

14 Kafenbaum v. GTECH Holdings Corp.,

15 (D.R.I. 2002) 217 F.Supp.2d 238 ...................... ; ...................................................................... 10

16 Kunert v. Mission Fin. Servs. Corp., (2003) 110 Cal.App.4th 242 ...................................................................................................... 8

17 Kwikset Corp. v. Super. Ct.,

18 (2011)51 Cal.4th310 ........................................................................................................ 16,17

19 L.8. Heath & Son, Inc. v. AT&T Information Systems, Inc., (7th Cir. 1993) 9 F.3d 561 ........................................................................................................ 16

20 Lavie v. Proctor & Gamble Co.,

21 (2003) 105 Cal.AppAth 496 ......... , .......................................................................................... 14

22 Long v. Hewlett-Packard Co., (N.D.Cal., July 27,2007, No. 06-02816),2007 WL 2994812 ................................................. 10

23 Milkovich v. Lorain Journal Co.,

24 (1990) 497 U.S. 1 ...... .............................................................................................................. 19

25 Milton H Greene Archives, Inc. v. GMC Worldwide (C.D.Cal., Mar. 17,2008, No. 05-2200), 2008 U.S. Dist. LEXIS 71761 ................................. 16

26 Newcal Indus, Inc. v. Ikon Office Solution,

27 (9th Cir. 2008) 513 F.3d 1038 .................................................................................................... 9

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HP'S MOTION FOR SUMMARY JUDGMENT AND/OR ADJUDICATION ON ORACLE'S CROSS-COMPLAINT CASE NO.: 1-1 l-CV-203 163

1 Oestreicher v. Alienware Corp., (N.D.Cai. 2008) 544 F.Supp.2d 964,

2 affd. (9th Cir. 2009) 322 Fed.Appx 489 ................................................................................... 10

3 Okun v. Superior Court, (1981) 29 Cal. 3d 442 .............................................................................................................. 20

4 ProconGPS, Inc. v. Star Sensor LLC,

5 (N.D.Cal., Nov. 29, 2011, No. 11-3975) 2011 WL 5975271 .................................................. 18

6 Puentes v. Wells Fargo Home Mortg., Inc., (2008) 160 Cal.App.4th 638 .................................................................................................... 15

7 Reader's Digest Assn. v. Superior Court,

8 (1984) 37 Cal.3d 244 ............................................................................................................... 20

9 Rosenbluth Int'l, Inc. v. Super. Ct., . (2002) 101 Cal.App.4th 1073 .................................................................................................. 17

10 Sangha v. La Barbera,

11 (2006) 146 Cal.App.4th 79 ........................................................................................................ 6

15 Smith v. Maldonado, (1999) 72 Cal.App.4th 637 ...................................................................................................... 20

16 South Bay Chevrolet v. GMAC,

17 (1999)72Cal.App.4th861 ...................................................................................................... 14

18 Summit Tech., Inc. v. High-Line Med. Instruments, Co., (C.D.Cai. 1996) 933 F. Supp. 918 ........................................................................................... 10

19 Sybersound Records, Inc. v. UA V Corp.,

20 (9th Cir. 2008) 517 F.3d 1137 .................................................................................................. 18

21 Taylor v. CNA Corp., (E.D.Va. 2010) 782 F.Supp.2d 182 .......................................................................................... 19

22 Tietsworth v. Sears, Roebuck & Co.,

23 (N.D.Cai. 2010) 720 F.Supp.2d 1123 ...................................................................................... 10

24 Toledo Heart Surgeons, Inc. v. Toledo Hosp., (2003) 154 Ohio App.3d 694 ................................................................................................... 19

25 Trafficschool.com, Inc. v. Edriver, Inc.,

26 (C.D.Cai. 2008) 633 F.Supp.2d 1063, affd. in part & revd. in part (9th Cir. 2011) 653 F.3d 820 ....................................................... 16

27 Two Jinn, Inc. v. Gov't Payment Serv.,

28 (S.D.Cal., Apr. 1,2010, No. 09-2701) 2010 U.S. Dist. LEXIS31825 .................................... 16


IV

HP'S MOTION FOR SUMMARY JUDGMENT AND/OR ADJUDICATION ON ORACLE'S CROSS-COMPLAINT CASE NO.: 1-11-CV-203163

1 US. Healthcare, Inc. v. Blue Cross, (3d Cir. 1990) 898 F.2d 914 ....................................................................................................... 7

2 Vitt v. Apple Computer, Inc.

3 (9th Cir., Feb. 28, 2012, No. 10-55941),2012 U.S. App. LEXIS 4419 .................................... 7

4 Walker & Zanger, Inc. v. Paragon Indus., Inc., (N.D.Cal. 2007) 549 F.Supp.2d 1168 ...................................................................................... 17

5 Watson Labs., Inc. v. Rhone-Poulenc Rorer, Inc.,

6 (C.D.Cal. 2001) 178 F.Supp.2d 1099 ...................................................................................... 18

7 Wilson v. Hewlett-Packard Co.,

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Gibson. Dunn & Crutcher LLP

(9th Cir. 2012) 668 F.3d 1136 .................................................................................................... 7

Statutes Cal. Civ. Proc. Code, § 45 .................................................................................................................... 19

Cal. Civ. Provo Code, § 437c .................................................................................................................. 6

Treatises 2 J. McCarthy, Trademarks and Unfair Competition (2d ed. 1984) § 27:713 ....................................... 7

v HP'S MOTION FOR SUMMARY JUDGMENT AND/ORADJUDICATION ON ORACLE'S CROSS-COMPLAINT

CASE NO.: 1-11-CV-203163

1 I. INTRODUCTION

2 Oracle contends that HP engaged in "false advertising" by failing to disclose the detailed

3 payment and other terms of its contract with Intel Corporation for the development of the Itanium

4 microprocessors used in HP's enterprise servers. The details of how HP delivered its products,

5 however, including its arrangements with Intel, are irrelevant and cannot support a claim for

6 fraudulent non-disclosure or false advertising under either federal or state law. Businesses are not

7 obligated under the law to substantiate their public statements by disclosing all of their confidential

8 arrangements with their suppliers. Moreover, the allegedly "secret" HP-Intel agreement upon which

9 Oracle bases its cross-claims does not render any ofHP's public statements false. To the contrary,

10 the agreement confirmed that there was (and is) a plan for uninterrupted production of multiple

11 generations ofItanium microprocessors, supported by contract. Oracle's claims are wholly contrived

12 and summary adjudication is warranted.

13 Not surprisingly, Mark Hurd-the current president of Oracle and HP's former CEO who was

14 responsible for "closing the deal" with Intel-disagrees with Oracle's claim. When asked whether it

15 was "misleading for you not to tell customers that you were paying Intel to develop the Itanium

16 microprocessor," Mr. Hurd testified unequivocally, "No." Mr. Hurd also testified that he: (1) did not

17 "intend to deceive customers about Intel's commitment [to] the Itanium microprocessor"; (2) did not·

18 "make any false or deceptive statements to customers about HP's Itanium based server products";

19 (3) did not "ever lie to customers about the Itanium roadmap"; (4) did not direct HP employees to

20 deceive customers about Itanium; and (5) is not aware of any HP employee who deceived customers

21 about Itanium. Thus, Oracle's own president does not agree with the core premise underlying its

22 false advertising cross-claims.

23 In addition to its concealment theory, Oracle also cites a variety of other purported false

24 statements by HP as providing a basis for its false advertising and defamation claims, including

25 statements that HP is "very confident" about the future development ofItanium and that Oracle's

26 decision to stop supporting the Itanium platform was "anticompetitive" and "anti-customer." But

27 these statements do riot provide a basis for Oracle's false advertising or defamation claims; many of

28 the statements are non-actionable opinion or puffery, and the remaining statements are indisputably


1 HP'S MonON FOR SUMMARY JUDGMENT AND/OR ADJUDICA nON ON ORACLE'S CROSS-COMPLAINT

CASE NO.: 1-11-CV-203163

1 true and were not likely to mislead the sophisticated customers that purchase enterprise servers

2 powered by Itanium microprocessors. In fact, most of the statements at issue were corrective

3 statements made in response to Oracle's false March 2011 announcement that "Intel ... made it

4 clear ... that Itanium was nearing the end of its life."

5 Indeed, if any party should be facing false advertising claims, it is Oracle. Oracle's CEO

6 Larry Ellison testified that in making his decision to issue the announcement that Itanium was

7 "nearing the end of its life," he relied on a conversation with Intel's CEO Paul Otellini. But Mr.

8 Ellison admitted under oath that Mr. Otellini did not say that Itanium was nearing the end of its life.

9 In fact, the day after Oracle's announcement, Intel issued a press release in which Mr. Otellini made a

10 strong statement reiterating Intel's commitment to a multi-generational Itanium roadmap. The Intel

11 executive responsible for the Itanium business testified that in this press release Intel "intended to

12 convey to the market, in fact, that Intel remained fully committed to Itanium and that end of life for

13 Itanium was not, in fact, near." It is not false advertising for HP to correct misinformation to protect

14 its business.

15 Finally, the undisputed facts also show that Oracle cannot establish any injury caused by HP's

16 alleged statements or omissions. This failure likewise warrants summary adjudication of Oracle's

17 federal Lanham Act and state Unfair Competition and False Advertising claims.

18 The parties have engaged in substantial discovery related to these cross-claims and Oracle's

19 contention that Itanium is at the end of life, including numerous depositions of HP and Intel

20 employees. Despite this extensive discovery, Oracle has not unearthed any support for its cross-

21 claims. By granting this motion, the Court will streamline this case for trial, focus it on what it is

22 really about-Oracle's misconduct in breaching the parties' agreement-and eliminate side-show

23 issues that only threaten to confuse the jury.

24 II. FACTUAL BACKGROUND

25 A. HP's Roadmap And Its Relationship With Intel

26 In the mid-1990s, HP and Intel jointly developed a microprocessor chip known as ltanium.

27 Intel manufactures the Itanium microprocessors and sells them for use in enterprise servers, principally

28 for high-performance, mission-critical computing applications. HP began selling server systems based



CASE NO.: 1-11-CV-203163 .

1 on the Itanium microprocessor in 2001 and continues to sell such systems today under the model

2 names "Integrity" and "Superdome." (Ex. 26 atpp. 13:11-14:14.)\

3 For a number of years after the Itanium processor debuted in 2001, Intel bore the bulk of the

4 development and production costs ofItanium. (Ex. 32 at pp. 39:9-40:4; Ex. 33 at pp. 67:3-68:12.)

5 During this time Intel had a number of customers for Itanium. Over time the market for

6 Itanium microprocessors decreased, as certain hardware vendors (like IBM) focused on developing

7 their own proprietary microprocessors that competed with ltanium, while others elected to focus on

8 Intel's higher volume x86 microprocessor architecture. (Ex. 24 at p. 42:16-20, p. 43:20-24; Ex. 25 at

9 p. 21 :23-25.) In this climate, HP eventually became the only major customer for the Itanium

10 microprocessor and it effectively became HP's proprietary microprocessor, like Sun's SPARC and

11 IBM's Power microprocessors. (Ex. 23 at p. 31: 1-12; Ex. 21 at p. 47: 17 -19.) But unlike Sun and

12 IBM, who were undertaking the expensive and difficult task of designing and fabricating high

13 performance microprocessors themselves, Intel, the world's foremost microprocessor manufacturer,

14 was undertaking this effort for HP. (Ex. 32 at p. 35:13-25.)

15 Recognizing that Intel's business case for ltanium had changed, in March 2008 HP-then

16 under the leadership of CEO Mark Hurd-signed a written contract, called the "ltanium Collaboration

17 Agreement" (the "ICA"), with Intel. (Separate Statement of Undisputed Facts ("UF") 2; Ex. 1.)

18 Pursuant to this agreement, a deal that Mr. Hurd "closed" (UF 5; Ex. 21 at p. 18:7-9), HP agreed to

19 share Intel's considerable development and manufacturing costs to keep Itanium at the cutting edge of

20 microprocessor performance. (Ex. 1; Ex. 23 at pp. 197:23-198:4.) This was just one of several similar

21 agreements that Intel had negotiated with various companies (Ex. 23 at p. 36:16-21), and the ICA

22 committed the parties to a roadmap that extended out over three future generations of the Itanium

23 processor-code-named Tukwila, Poulson, and Kittson-with each having enhanced performance and

24 technological features. (UF 2-3; Ex. 1; Ex. 23 at pp. 201:18-202:13.)

25 In October 2010, HP and Intel renegotiated their ltanium relationship by way of an amendment

26 to the ICA. (UF 7; Ex. 2.) Through this amendment HP agreed to increase its investment, and the

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28 1 All exhibit references refer to the Declaration of James L. Zelenay, Jr.



CASE NO.: l-11-CV-203163

1 parties redefined the Itanium roadmap to ensure even greater performance and enhanced features for

2 upcoming generations of Itanium-a roadmap that will carry the Itanium line deep into the current

3 decade, and ensure a foundation for continued development of further generations of the Itanium

4 microprocessor. (UF tjItj1 7-10; Ex. 2.) Intel has confirmed that this amendment enabled HP to have

5 access to the Itanium microprocessor through 2022 and that HP "could extend it even longer." (Ex. 23

6 at p. 229:15-17.) As Intel explained to its customers in March 2011, it "firmly believe[s] that the

7 ltanium platform provides a sound foundation for mission critical computing well through this coming

8 decade," and it has already "start[ed] exploratory work for what comes after Kittson." (Ex. 3.)

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11 B. Oracle's Announcement That It Was Discontinuing Development For Itanium

12 Oracle develops business software for corporations and other enterprises. The company's

13 primary software product is its Database, which enables companies to store, retrieve, and manipUlate

14 large sets of data. Oracle is currently the leading supplier of such software and holds more market

15 share by revenue than its five closest competitors combined. (Ex. 12.) It also develops a variety of

16 other software applications for enterprise customers. These applications, along with the Database, run

17 on servers such as HP's Integrity line. Oracle must "port" each of its software products to run on

18 particular server "platforms"-Le., the processor and operating system combination (see infra fn. 2).

19 Software ported to one platform will not work on other platforms-e.g., software ported to

20 ItaniumlHPUX will not run on Sparc/Solaris or Power/ AIX and vice versa.

21 HP and Oracle developed a "very, very deep" partnership, founded on the porting of Oracle's

22 software to HP's servers-in particular, Oracle's flagship Database software to HP's ItaniumlHPUX

23 platform. (Ex. 17 at p. 7; Ex. 34 at pp. 166:21-169:3.) Oracle began porting its Database to the

24 Itanium platform in February 2003 and continued to port every new version, as well as all updates.

25 (Ex. 38 [Resp. to Interrog. No.1]; Ex. 35 at pp. 81:25-82:10, 82:14-24, 84:9-19; Ex. 21 at

26 p. 166:3-6; Ex. 36 at pp. 110:14-111 :2, 148:10-14.) In addition, for many years and throughout Mr.

27 Hurd's tenure at HP, Oracle also consistently ported to the ItaniumlHPUX platform the other major

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application products in its software suite. (Ex. 38 [Resp. to Interrog. No. l]i

On March 22, 2011, without any warning at all to HP, Oracle issued a press release announcing

that new versions of Oracle's software would no longer be offered on HP's Itanium processor-based

server platform. (Ex. 4.) Oracle's purported justification for taking this action was that "Intel ...

made it clear ... that Itanium was nearing the end of its life." (Ibid.)

Intel's reaction to Oracle's March 2011 announcement was swift and strong. Upon learning of

Oracle's false statement about Itanium nearing end oflife, an Intel executive immediately sent an

email to his Oracle counterpart, explaining that Oracle's justification for that announcement was

"totally inaccurate." (Ex. 13.) Immediately after the announcement, Intel also issued its own press

release-entitled "Chip Shot: Intel Reaffirms Commitment to Itanium"-stating that:

As a result of recent announcements from Oracle, Intel is taking this opportunity to directly reiterate its plans for the ltanium processor. "Intel's work on Intel Itanium processors and platforms continues unabated with multiple generations of chips currently in development and on schedule," said Paul Otellini, president and CEO of Intel Corporation. "We remain firmly committed to delivering a competitive, multi-generational roadmap for HP-UX and other operating system customers that run the Itanium architecture."

(Ex. 5, emphasis added; UF 12.) A senior Intel executive testified that in this press release Intel

"intended to convey to the market, in fact, that Intel remained fully committed to Itanium and that

end of life for Itanium was not, in fact, near." (Ex. 23 at pp. 234:23-235:17.)

Oracle's CEO Larry Ellison testified that in making his decision to issue Oracle's March 22

announcement he relied on a conversation he had with Paul Otellini, Intel's CEO. (Ex. 22 at p. 154:5-

13.) But Mr. Ellison admitted under oath that Mr. Otellini did not say "that Itanium was nearing the

end of its life," and that this was something that Mr. Ellison merely gleaned "from all the facts I had at

hand." (Ex. 22 at pp. 131 :13-133:4.) Mr. Otellini's press statement could not be clearer in denying

Oracle's characterization of Itanium as nearing its end of life.

In a March 2011 letter to customers, Intel reiterated that "[w]e firmly believe that the Itanium

platform provides a sound foundation for mission critical computing well through the coming decade."

(Ex. 3.) The author ofthis letter, Kirk Skaugen, testified that the October 2010 ICA amendment

27 2 Oracle has identified the last versions of the core products in its product suite that were offered on ltanium and the next versions of those core products that will not be offered on Itanium. (Ex. 38

28 [Resp. to Interrog. No.4].)



CASE NO,: l-11-CV-203163

1 enabled HP to have access to the Itanium microprocessor through 2022 and that HP "could extend it

2 even longer." (Ex. 23 at p. 229:15-17; UF 10.) He explained that "from [Intel's] perspective, we

3 were now committing out well into the 2016 plus timeframe.

4 (Ex. 23 at p. 224:12-17; UF 8.)

5 III. LEGAL STANDARD

6 HP is entitled to summary judgment if there is no triable issue of material fact. (Code Civ.

7 Proc., § 437c.) Once the moving party establishes "one or more elements of the cause of action ...

8 cannot be established," the burden "then shifts to the plaintiff to show by admissible evidence that a

9 triable issue of material fact exists." (Sangha v. La Barbera (2006) 146 Cal.App.4th 79,84.) Oracle

10 cannot meet its burden by relying upon allegations in its Cross-Complaint; instead, it "shall set forth

11 the specific facts showing that a triable issue of material fact exists as to that cause of action." (Ibid)

12 Oracle also cannot cite new, unpleaded issues in its opposing papers. (Conroy v. Regents ofUniv. of

13 Cal. (2009) 45 Ca1.4th 1244, 1254.)

14 IV. ORACLE'S FALSE ADVERTISING CLAIMS FAIL

15 Oracle's Lanham Act, UCL, and FAL claims fail for several reasons: (1) HP had no duty or

16 obligation under the law to disclose the details of its confidential development agreement with Intel;

17 (2) the purported "false statements" upon which Oracle seeks to base its claims are non-actionable

18 statements of opinion about the benefits of Itanium servers or truthful statements confirming the public

19 roadmap for these products; (3) Oracle cannot show any injury caused by the alleged false statements

20 or omissions; and (4) there is no legal or factual basis for Oracle's UCL claims for "unlawful" or

21 "unfair" business practices.

22 A. HP Had No Obligation To Disclose The Details Of Its Agreement With Intel

23 The theory behind Oracle's Lanham Act, UCL, and FAL claims appears to be that HP had an

24 affirmative duty or obligation under these laws to publicly disclose its confidential negotiations and

25 confidential agreement with Intel, HP's supplier ofItanium microprocessors. As Oracle contends in

26 its Cross-Complaint, "[h ]ad HP simply entered into the Intel deal and revealed it-perhaps taken credit

27 for it-Oracle would have nothing to complain about." (F ACC 12.) But there is no support for

28 Oracle's argument that HP had any duty to disclose the confidential development agreement, or that



CASE NO.: 1-11-CV-203163

1 such non-disclosure can provide the basis for "false advertising" claims under the Lanham Act, the

2 VCL, or the F AL. Such a rule would dramatically expand liability under these laws, and force a

3 business to reveal the details of its agreements with its suppliers and other vendors.

4 Courts have consistently rejected the core premise underlying Oracle's claims and held that

5 businesses have no obligation to disclose details such as the confidential arrangements they may have

6 with their suppliers, as long as they deliver on their advertisements or promises. As an initial matter,

7 several courts have explained that there is no language in the Lanham Act even recognizing omission

8 claims. (See, e.g., K&N Eng'g, Inc. v. Spectre Perf (C.D.Cal., Sept. 20, 2011, No. 09-01900) 2011

9 WL 4387094, at p. 18 [collecting cases].) Where courts have recognized an "omission" theory under

10 the Lanham Act, it has been limited to situations where the omitted information was necessary to

11 correct a misstatement. (See ibid.; Us. Healthcare, Inc. v. Blue Cross (3d Cir. 1990) 898 F.2d 914,

12 921, citing 2 J. McCarthy, Trademarks and Vnfair Competition (2d ed. 1984) § 27:713.)

13 Similarly, as the Ninth Circuit recently held with respect to VCL and F AL claims, "California

14 courts have generally rejected a broad obligation to disclose" and such a duty only exists if "the

15 omission is 'contrary to a representation actually made by the defendant, or an omission of a fact the

16 defendant was obligated to disclose.'" (Wilson v. Hewlett-Packard Co. (9th Cir. 2012) 668 F.3d 1136,

17 1141; accord Vitt v. Apple Computer, Inc. (9th Cir., Feb. 28, 2012, No. 10-55941) 2012 U.S. App.

18 LEXIS 4419, at p. 4.) These Ninth Circuit decisions relied on Daugherty v. Am. Honda Mot. Co., Inc.

19 (2006) 144 Cal.App.4th 824,838, which held that "a failure to disclose a fact one has no affirmative

20 duty to disclose is [not] 'likely to deceive' anyone within the meaning of the VCL." Daugherty held

21 that for such an omission to be actionable, it "must be contrary to a representation actually made by

22 the defendant," or an omission of fact that creates an "unreasonable risk" to the plaintiff's safety. (Id.

23 at pp. 835-836; accord Clemens v. DaimlerChrysler Corp. (9th Cir. 2008) 534 F.3d 1017, 1026.)

24 California appellate courts have refused to permit false advertising claims based on other third party

25 arrangements. (See, e.g., Searle v. Wyndham Int'l, Inc. (2002) 102 Cal.App.4th 1327, 1134-1135

26 [finding no actionable omission because a consumer has "no legitimate interest" in a seller's other

27 business arrangements and the seller "has no obligation to advise consumers about what it does with

28 the revenue it receives from them"]; Kunert v. Mission Fin. Servs. Corp. (2003) 110 Cal.App.4th 242,



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264-265 [action is not "deceptive [under the UCL] merely because it is not disclosed to consumers"].)

The limited circumstances in which courts have recognized Lanham Act and UCLIF AL claims

based on an omission are simply not present here. The failure to disclose the ICA did not render any

HP statement false or likely to mislead. To the contrary, the ICA itself confirmed HP's statements that

there was a multi-year roadmap for Itanium. (UF 2-3, 7-9.) HP is not obligated to substantiate its

public statements by publicly disclosing its confidential supplier arrangements. These arrangements

are common, and Intel has several similar agreements. (Ex. 23 at p. 36:16-21.) Oracle itselflikely has

hundreds of confidential agreements with suppliers that it has never publicly disclosed. All that

matters is that HP has delivered on its promises. The details of how it did so are irrelevant.

Even Oracle's current Co-President, Mark Hurd-who was responsible as the former CEO at

HP for "closing the deal" with Intel (UF 5)-testified that HP's actions of keeping its confidential

agreement with Intel confidential did not mislead customers:

HP's counsel: In your view, was it misleading for you not to tell customers that you were paying Intel to develop the Itanium microprocessor?

Mr. Hurd: No.

16 (Ex. 21 at p. 48:6-9.) Mr. Hurd also rejected Oracle's characterization of the ICA as a "bribe" or

17 "pay-off' to Intel. (ld. at pp. 18:22-19:7.)

18 Thus, by the admission of its own current president-who directly participated in the

19 negotiation of the undisclosed Intel contract and was intimately familiar with HP's plans and

20 concerns surrounding Itanium-Oracle cannot prevail on its false advertising claims. There is simply

21 no basis-in law or fact-to support Oracle's attempt to extend the state and federal false advertising

22 laws to require HP to disclose its confidential supplier agreements. The Court should grant summary

23 adjudication on Oracle's claims on this basis alone.

24 B. Oracle Cannot Establish That Any Of The Statements Were False Or Misleading

25 In addition to its omission theory, Oracle also attempts to base its claims on statements that HP

26 representatives made largely in response to Oracle's false announcement that Itanium was nearing end

27 of life. (FACC 23,33.) None of the statements identified by Oracle provides a basis for Oracle's

28 claims because they are either non-actionable statements of opinion or puffery or truthful reports of the



CASE NO.: l-II-CV -203163

1 extended roadmap for Itanium that could not have misled anyone.

2 1. Oracle Cannot Base Its Claims On Non-Actionable Opinion Statements

3 Oracle attempts to base its claims on several HP statements of opinion, such as that the Itanium

4 roadmap "has never been clearer," that Intel is a "loyal partner," that HP is "confident' in its product,

5 and that Oracle's actions of terminating its co-developer relationship with HP with respect to the

6 ltanium servers was "anticompetitive." (FACC 23,33, emphases added.)3 But these statements

7 constitute classic non-actionable opinion or "puffery," and they cannot provide a basis for Oracle's

8 claims. (See, e.g., Coastal Abstract Serv., Inc. v. First Am. Title Ins. Co. (9th Cir. 1999) 173 F .3d 725,

9 731 [puffery consists of subjective, non-quantifiable assertions that cannot be proven true or false];

10 Cook, Perkiss & Liehe v. N Cal. Collection Serv., Inc. (9th Cir. 1990) 911 F.2d 242,243 [puffery is

11 not actionable under the Lanham Act]; Consumer Advocates v. Echostar Satellite Corp. (2003) 113

12 Cal.App.4th 1351, 1361 [UCLIFAL claims cannot be based on puffery]; see also Newcal Indus, Inc. v.

13 Ikon Office Solution (9th Cir. 2008) 513 F.3d 1038, 1053 ["[T]he determination of whether an alleged

14 misrepresentation 'is a statement of fact' or is instead 'mere puffery' is a legal question .... "].)

15

16 3 (See also FACC 23 ["the Itanium roadmap has 'never been clearer' and ... 'Intel's commitment is as strong as it ever has been"']; ibid. ["Intel is a 'loyal partner for the development of the Itanium

17 system' and ... HP is 'very confident about the future development of the Itanium system on a basis of its high credibility, capability and flexibility"']; ibid. ["'The recently announced HP Integrity

18 servers have a long life ahead of them. .. . This is the longest published roadmap in the UNIX business .... "']; ibid. ["'[Intel's] public roadmap is ... one ofthe longer public roadmaps

19 available .... "']; ibid. ["customers are 'excited by Intel's Itanium roadmap, the longest public microprocessor roadmap in the industry"']; id. 33 [HP "accused Oracle of engaging in 'a pattern

20 of anti-customer behavior'" and "putting enterprises and governments 'at risk while costing them hundreds of millions of dollars in lost productivity in a shameless gambit to limit fair

21 competition"']; ibid. ["Oracle was employing 'bully[ing] tactics and forced migrations,' and disseminating 'disinformation"']; ibid. [HP "posted to its website a template 'Oracle Customer

22 letter' that demands 'Oracle immediately reverse its decision"']; ibid. ["Oracle's Itanium decision was 'anticompetitive,' 'self-interested,' and 'to the endangerment of customers''']; ibid. ["'Many of

23 Larry Ellison's announcements are meant to disrupt the market to Oracle's gain"']; ibid. ["'Oracle has shown a pattern to limit customer choice, raise prices, and cut off partners ... [and] Oracle's

24 actions have been in the best interest of Oracle and not that of customers''']; ibid. ["Oracle's Itanium decision was made 'without a single consideration for customers"']; ibid. ["'Oracle['s]

25 decision' ... had left 'many joint customers without a solution''']; ibid. ["Oracle ... 'disregard[ed] its commitments, and ... engag[ed] in conduct designed to deny choice and harm competition''']; id.

26 38 [alleging that a customer letter allegedly drafted by HP 'falsely suggest[ed] that Oracle discontinued or otherwise interrupted its support for Oracle's Itanium-based software"]; id. 36

27 [alleging, without quoting any partiCUlar statement, that HP has "lie[ d] to the marketplace ... that Oracle has refused to provide ongoing software support and bug-fixes for current versions of

28 Oracle's software for ltanium servers"].)


9 HP'S MOTION FOR SUMMARY mDGMENT AND/OR ADruDICATION ON ORACLE'S CROSS-COMPLAINT

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Courts have found very similar statements to be non-actionable puffery or opinion. For

example, a court held that the statement "[ w]e are as confident as ever" was "nothing more than

puffery and [could not] be the basis ofa cause of action." (Johnson v. Tellabs, Inc. (N.D.Ill. 2003)

262 F.Supp.2d 937,951, emphasis added; see also Kafenbaum v. GTECH Holdings Corp. (D.R.L

2002) 217 F.Supp.2d 238, 250 [statement that a company "remains confident that our business is

sound" is "not actionable as a matter of law"], emphasis added.) In another case, the court held that

'" industry-leading' is classic puffery and ... invites significant ambiguity as to, inter alia, the breadth

of the 'industry' to which the statement refers." (Intertape Polymer v. Inspired Techs., Inc. (M.D.Fla.

2010) 725 F.Supp.2d 1319, 1334-1335, emphasis addedl

In addition, courts have held that "[r]obust debate between competitors on matters of

opinion ... [is] encouraged as part of the hurly-burly inherent in a free market system, and indeed an

open society." (Licata & Co., Inc. v. Goldberg (S.D.N.Y 1993) 812 F.Supp. 403, 408.) Therefore,

corrective statements that Oracle's conduct was "anticompetitive" or contrary to "customers' interests"

are statements to be encouraged, not subjected to civil liability under the federal Lanham Act and the

VCL or FAL. For these reasons, the Ninth Circuit has held that a defendant's statement that his

competitor "was too small to handle the volume of business that [customers] provided" was "exactly

the kind of 'puffery' that does not qualify as a statement of fact capable of being proved false."

(Coastal Abstract Serv., supra, 173 F.3d at pp. 730-731.) Likewise, the Second Circuit affirmed an

order granting summary judgment to a defendant whose advertisement proclaimed that a competing

author was "guilty of misleading the American public." (Groden v. Random House, Inc. (2d Cir.

4 (See also Tietsworth v. Sears, Roebuck & Co. (N.D.Cai. 2010) 720 F.Supp.2d 1123, 1137 [statement that a product is "designed and manufactured for years of dependable operation" is non-actionable puffery which as a matter of law cannot deceive a reasonable consumer]; Oestreicher v. Alienware Corp. (N.D.Cai. 2008) 544 F.Supp.2d 964, 973, affd. (9th Cir. 2009) 322 Fed.Appx 489 [holding that "generalized and vague statements of product superiority such as 'superb, uncompromising quality' and 'faster, more powerful, and more innovative than competing machines'" are non-actionable puffery]; Long v. Hewlett-Packard Co. (N.D.Cal., July 27,2007, No. 06-02816) 2007 WL 2994812, at p. 7 [rejecting VCL claim challenging HP's statement that its Pavilion computer line represents a "reliable mobile computing solution," as such statements were "generalized, non-actionable puffery, because a reasonable consumer would not have relied on such vague statements in making purchasing decisions"]; Summit Tech., Inc. v. High-Line Med Instruments, Co. (C.D.Cai. 1996) 933 F. Supp. 918, 930-932, 940 [examples of non-actionable puffery include advertisements that products are "perfectly reliable," "properly serviced and maintained," and will be installed by "competent" service engineers].)


CASE NO.: 1-11-CV-203163

1 1995) 61 F.3d 1045, 1052.) And the First Circuit held that the accusation that plaintiffs were

2 "blatantly misleading the public" was "subjective and imprecise, and therefore not capable of

3 verification or refutation by means of objective proof." (Phantom Touring, Inc. v. Affiliated Publ 'ns

4 (1st Cir. 1992) 953 F.2d 724, 728, fn. 7.)

5 Here, the statements cited by Oracle-that the Itanium roadmap "has never been clearer," that

6 "Intel's commitment is as strong as it ever has been," or that Oracle's conduct is "bully[ing]" (FACC

7 23, 33)-are precisely the type of puffery and opinion regarding a competitor that "no reasonable

8 consumer would take as anything more weighty than an advertising slogan" or boasting. (Consumer

9 Advocates, supra, 113 Cal.App.4th at p. 1361; see also In re Cornerstone Propane Partners, LP

10 (N.D.Cai. 2005) 355 F.Supp.2d 1069, 1087 ["industry leading" growth constitutes "vague, unspecific

11 assertions of corporate optimism"]; Hughes v. Panasonic Consumer Elecs. Co. (D.N.J., July 21,2011,

12 No. 10-846) 2011 U.S. Dist. LEXIS 79504, at p. 35 [statements about televisions' "industry leading

13 black levels and contrast ratios" are non-actionable puffery].) These statements cannot, therefore,

14 provide a basis for Oracle's claims and HP is entitled to summary judgment in its favor. 5

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2. Oracle Also Cannot Base Its False Advertising Claims On Truthful Statements Reporting The Extended Roadmap For Itanium

For those statements that are subject to verification, the undisputed facts demonstrate that HP's

statements were true and not likely to deceive anyone. Of the statements that Oracle has identified,

only a handful could even arguably be considered verifiable, and all of them relate to the length of the

roadmap for HP's Itanium servers. (See, e.g., FACC 23 ["HP along with key partner Intel, is

committed to at least 10 years of development and innovation on its HP-UX operating system and

Itanium-based Integrity servers.,,].)6

5 To the extent Oracle attempts to rely upon any statements made in this case (see FACC 37), those statements are protected by the litigation privilege. (Civ. Code, § 47, subd. (b).)

6 (See also F ACC 23 ["'The recently announced HP Integrity servers have a long life ahead of them. .. . This is the longest published roadmap in the UNIX business - taking the roadmap out until around 2017"']; ibid ['''[HP] will continue the development and innovation ofIntegrity server platforms ... using a roadmap that extends more than 10 years"']; ibid. ["'Intel unveiled technical details about the next Itanium processor ... with a long and vital roadmap extending beyond the next 10 years to the Kittson processor"']; ibid ["'This is the longest published roadmap in the UNIX business - taking the roadmap out until around 2017."']; ibid ["'[HP will] continue the development and innovation of the Itanium-based integrity server ... using a roadmap extending out

. [F ootnote continued on next page] 11

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But these statements were indisputably true. At all relevant times, HP had multi-year contracts

in place for Itanium processors (UF 2-3, 7-9), and the published roadmap has always accurately

represented that HP's Itanium servers would be produced and serviced for many years into the future:

• In June 2007, Intel announced an extended roadmap that included three generations of ltanium processors---codenamed Tukwila, Poulson, and Kittson. (UF 1; Ex. 6.) Tukwila was released in February 2010. (UF 6; Ex. 7.) Kirk Skaugen, the Intel executive responsible for the Itanium microprocessor line during the relevant period, testified that Intel was "excited" about the future of the Itanium roadmap at this time, that Tukwila doubled the performance of the previous ltanium processor, and that-when it is released later this year-Poulson will double the performance of Tukwila. (Ex. 23 at pp. 106:25-107:21, 195:9-202:13.)

• In October 2010, HP and Intel amended the leA, which anticipates the release of Poulson in 2012 and the marketing launch of Kittson in 2014 or 2015. (UF 7; Ex. 1; Ex. 23 at pp. 203:11-204:14.) Mr. testified that Intel is "now . out well into the

___ " (Id. at p. 7; UF Mr. u ... u .... F, ...

"actually now g?es out farther ___ (UF 16, Ex. 23 at p. 108.2-8].)

• The leA also commits Intel to deliver Kittson processors for a period of five years after the marketing launch date-effectively extending theItanium roadmap out until at least 2019 or 2020. (UF 9; Ex. 1.)

• In a March 2011 letter to customers, Intel stated: "We firmly believe that the Itanium platform provides a sound foundation for mission critical computing well through the coming decade." (Ex. 3, emphasis added.) Mr. Skaugen, the author of this letter, testified that the October 2010 leA amendment enabled HP to have access to the ltanium microprocessor through 2022, and that HP "could extend it even longer;" (Ex. 23 at p. 229:15-17, emphases added.)

• Indeed, the objective ofHP's business

• There are already discussions between Intel and HP to extend the Itanium roadmap beyond Kittson and the parties "are currently starting exploratory work for what comes after Kittson." (UF 10; Ex. 3; Ex. 23 at p. 239:12-24.)

Accordingly, there was never a period of time when there was not a robust multi-generational roadmap

[Footnote continued from previous page] 28 beyond the next 10 years."'].)



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for Itanium servers.

Further, Oracle's President, Mark Hurd, denied that HP made any false statements regarding

Itanium:

HP's counsel: During the time that you were CEO ofHP, to your knowledge, did you or anyone else at HP make any false or deceptive statements to customers about HP's Itanium-based server products? ...

Mr. Hurd: I did not, and I can't cite any specifics that I'm aware of, of anyone else.

(Ex. 21 at pp. 13:17-20, 14:5-6.)

HP's counsel: And during the time that you were CEO ofHP, did you ever direct any HP employees to try to deceive customers about the Itanium roadmap?

Mr. Hurd: No.

(Id. atp. 14:14-17.)

HP's counsel: I take it you did not make any false or deceptive statements to Oracle about Itanium or its future; is that correct?

Mr. Hurd: No.

(Id. at p. 17:5-8.) Mr. Hurd also testified that while he was CEO, HP did not engage in fraud, false

advertising, concealment, or consumer deception regarding Intel's commitment to Itanium:

HP's counsel: While you were the CEO ofHP, did you intend-did you, Mr. Hurd, intend to deceive customers about Intel's commitment to the Itanium microprocessor?

Mr. Hurd: Deceive them ofIntel's commitment? No, I did not intend to do that, no.

HP's counsel: And are you aware of any HP employees who intended to deceive customers regarding Intel's commitment to the Itanium microprocessor?

Mr. Hurd: I am not personally aware of anyone attempting to do that.

HP's counsel: Did you, while you were the CEO ofHP, direct any HP employees to try to deceive customers about Intel's commitment to Itanium?

Mr. Hurd: No.

HP's counsel: And while you were the CEO ofHP, were you aware of any effort at HP to intentionally try to deceive customers about Intel's commitment to the Itanium microprocessor?

Mr. Hurd: No.


CASE NO,: 1-11-CV -203163

1 (Id. at pp. 12:22-13:16.)

2 The foregoing evidence demonstrates that Oracle cannot pursue false advertising claims on

3 the basis of these statements. (See, e.g., Cairns v. Franklin Mint Co. (C.D.Cal. 2000) 107 F.Supp.2d

4 1212, 1223, affd. (9th Cir. 2002) 292 F.3d 1139 [granting summary judgment because the

5 "uncontroverted evidence demonstrates that defendants' statement[s were] ... literally true"]; Belton

6 v. Comcast Cable Holdings, LLC (2007) 151 Cal.AppAth 1224, 1241-1243 [holding that defendant

7 "met its burden [on summary judgment] to show these oral statements were neither false nor

8 misleading" and that plaintiff "merely disagreed with [defendant's] business reasons" which is "not

9 material to the truth of the statement[s]"].)

10 Oracle also cannot show that any of the remaining statements-such as HP's statement that

11 "[t]he recently announced HP Integrity servers have a long life ahead of them" or that the Itanium

12 roadmap "is the longest published roadmap in the UNIX business" (F ACC 23)-were untrue, or

13 that these general statements were likely to mislead consumers in any way or be material to them with

14 respect to their purchasing decisions. (See, e.g., Cairns, supra, 107 F.Supp.2d at p. 1223 [statements

15 are actionable only if they were likely to mislead consumers]; Cook, Perkiss & Liehe, Inc., supra, 911

16 F.2d at p. 244 [misleading nature of any statement or omission must be "material" to the purchasing

17 decision].) When determining whether a party's alleged statements are "likely to deceive," the Court

18 must consider the intended audience. (Lavie v. Proctor & Gamble Co. (2003) 105 Cal.AppAth 496,

19 504-508 ["'Likely to deceive' implies more than a mere possibility that the [conduct] might

20 conceivably be misunderstood .... Rather, the phrase indicates that the [conduct] is such that it is

21 probable that a significant portion of the ... targeted consumers, acting reasonably in the

22 circumstances, could be misled."], emphasis added; accord South Bay Chevrolet v. GMAC (1999) 72

23 Cal.AppAth 861,884.)

24 Here, the purchasers of Itanium servers are sophisticated buyers. Each Itanium server can cost

25 up to $2 million, and they are designed for large entities, such as banks, hospitals, and universities.

26 (UF 18.) The purchase decisions are often made by senior IT professionals. (UF 17.) Oracle

27 cannot establish that these sophisticated consumers would be deceived by-and make purchasing

28 decisions based on-the handful of vague and general statements identified by Oracle. (See, e.g.,



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Bracco Diagnostics, Inc. v. Amersham Health, Inc. (D.N.J. 2009) 627 F.Supp.2d 384, 476 ["Doctors

are sophisticated, knowledgeable consumers who are not easily misled; in contrast to literal falsity

claims, in implied falsity claims, this factor must be taken into account... . Likewise, committee

members responsible for purchasing decisions who have knowledge of, and experience with, the

advertised products are not likely to be deceived."]; Fla. Breckenridge, Inc. v. Solvay Pharm., Inc.

(S.D.Fla., Mar. 18, 1998, No. 97-8417) 1998 WL 468753, at p. 11 ["The consumers to whom

Breckenridge advertises are sophisticated: Breckenridge does not advertise to consumers

uneducated .... "].) Because HP's intended audience of sophisticated entities and IT professionals

would not be deceived by the statements in question, this issue "may be disposed of at summary . 7 judgment." (Puentes v. Wells Fargo Home Mortg., Inc. (2008) 160 Cal.AppAth 638,645, fn. 5.)

11 C.

12

Oracle Cannot Establish That It Has Suffered, Or Is Likely To Suffer, Any Injury Caused By The Alleged Misstatements Or Omissions

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The Lanham Act, F AL, and VCL claims also fail because Oracle cannot show that it suffered,

or is likely to suffer, any injury caused by HP's alleged misstatements or omissions. Oracle must

establish injury and causation for all three claims. (See, e.g., Air Turbine Tech., Inc. v. Atlas Copco

AB (Fed. Cir. 2005) 410 F.3d 701, 709 ["[F]alse advertising under the Lanham Act requires, among

other things, a showing of both an injury and a causal link between the injury and the allegedly false

19 7 Oracle also seizes upon a handful of internal HP documents expressing concerns about the viability ofItanium, and suggests that these statements demonstrate the "false nature of [HP's] public

20 statements regarding Itanium's vitality." (F ACC -026.) But these statements predated HP and Intel's October 2010 agreement that guaranteed a robust future for Itanium. (UF -0 7; Ex. 2.) Like

21 any responsible company, HP internally considered scenarios that did not assume continued Itanium development. For example, Oracle relies on a February 2009 HP document that includes a

22 reference to HPUX as being "on a death march due to inevitable Itanium trajectory." (FACC -0 26, citing Ex. 18 at 6.) However, this statement is in a presentation that considered HP's options should

23 HP stop funding Intel's Itanium development efforts. (Ex. 18.) Of course, HP did not adopt this option and instead subsequently decided to increase its monetary commitment to ensure the robust

24 development of future generations ofItanium. (VF -0 7; Ex. 2.) Oracle also relies on an April 2010 HP document that Oracle claims "makes numerous references to Itanium [end of life]." (FACC

25 -026, citing Ex. 19 at 5.) But this document considers four possible scenarios to expand HP's mission critical server business, three of which suggest alternatives to Itanium. (Ex. 19 at 2.) Of

26 course, the fourth option is labeled "Extend Itanium: Fund Intel to continue the Itanium roadmap" and this is precisely what HP decided to do. (Ibid.) Notably, this presentation also contemplates

27 an Itanium roadmap that extends to 2016 and beyond. (ld. at p. 9.) The remaining statements that Oracle cites are a variation of the same theme: unfounded speculation and concerns predating

28 October 2010 that assumed Intel was going to stop Itanium development, which never happened.



CASE NO.: 1-11-CV-203163

1 advertising."]; Harper House, Inc. v. Thomas Nelson, Inc. (9th Cir. 1989) 889 F.2d 197,210 ["In a suit

2 for damages [under the Lanham Act] ... , actual evidence of some injury resulting from the deception

3 is an essential element of the plaintiffs case."]); Kwikset Corp. v. Super. Ct. (2011) 51 Cal.4th 310,

4 322-326 [UCL and F AL claims require a showing of "economic injury"-meaning a loss of money or

5 property that is actual or imminent as opposed to hypothetical or speculative-that was "caused by"

6 defendant's actions]; Trafficschool.com, Inc. v. Edriver, Inc. (C.D.Cai. 2008) 633 F.Supp.2d 1063,

7 1074, affd. in part & revd. in part (9th Cir. 2011) 653 F.3d 820 [same].)

8 Oracle must establish injury and causation through actual/acts, and not speculation, subjective

9 belief, or conclusory averments in the pleadings. (See, e.g., Two Jinn, Inc. v. Gov't Payment Servo

10 (S.D.Cal., Apr. 1,2010, No. 09-2701) 2010 U.S. Dist. LEXIS 31825, at pp. 6-8; Milton H Greene

11 Archives, Inc. v. GMC Worldwide (C.D.Cal., Mar. 17,2008, No. 05-2200) 2008 U.S. Dist. LEXIS

12 71761, at pp. 83-84.) Although Oracle asserts that it has "lost business opportunities" (FACC 'il'il74,

13 80), it has not linked and cannot link any losses to HP's statements, as opposed to other factors such as

14 the quality of Oracle's own products. (See, e.g., In re Century 21-RElMAX Real Estate Adver. Claims

15 Litig. (C.D.Cal. 1994) 882 F.Supp. 915,924-925 [granting summary judgment to defendant because

16 the plaintiff failed to prove "a logical causal connection between the alleged false advertising and its

17 own sales position"].) Oracle cannot point to any evidence that it has lost sales as a result ofHP's

18 truthful and corrective statements regarding the Itanium roadmap, or from the failure to disclose the

19 HP-Intel agreement. Nor can Oracle show that any.customers were "misled" by these truthful

20 statements and purchased HP products instead of Oracle products as a result of these purported

21 statements. (See, e.g., L.8. Heath & Son, Inc. v. AT&T Information Systems, Inc. (7th Cir. 1993) 9 .

22 F.3d 561,575 [affirming grant of summary judgment where plaintiff failed to offer any evidence that

23 it lost customers due to defendant's advertisement]; American Med. Systems, Inc. v. Biolitec, Inc.

24 (D.Mass. 2011) 774 F.Supp.2d 375, 391-392 [same]; Trafficschool.com, supra, 633 F.Supp.2d at

25 p. 1074 ["Plaintiffs did not provide evidence that this decrease in business is caused by Defendants'

26 deceptive practices, and Plaintiffs bear the burden of proving causation to have standing under Section

27 17200."], quoting In re Tobacco II Cases (2009) 46 Ca1.4th 298, 326.)

28 Similarly, although Oracle complains about the statements that HP made to correct Oracle's



CASE NO.: 1-11-CV-203163

1 misleading press release and unlawful cancellation of software support for HP's Itanium platform

2 (F ACC 23, 33), Oracle cannot show that any purported customer reaction causing Oracle to lose

3 business was the result of HP's corrective statements, rather than Oracle's own abusive conduct.

4 That customers may have been upset with Oracle because of its attempt to eliminate customer choice

5 for server hardware does not provide a basis for suing HP. (See, e.g., Express, LLC v. Fetish Grp.,

6 Inc. (C.D.Cal. 2006) 464 F.Supp.2d 965, 972 [granting summary judgment for defendant where

7 plaintiffs "alleged damages were inevitable and the result of its own actions rather than [defendant's]

8 misrepresentations,,].)8

9 D. HP Is Entitled To Summary Judgment On The VCL and FAL Claims For Other Reasons

Courts treat claims pursuant to the Lanham Act and the F AL and/or the VCL "fraudulent"

prong as "substantially congruent." (Walker & Zanger, Inc. v. Paragon Indus., Inc. (N.D.Cal. 2007)

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


549 F.Supp.2d 1168, 1182-1183.) For this reason, and because Oracle also bases its "unlawful" prong

claim on alleged violations of the Lanham Act, these claims rise or fall (See, e.g., Searle v.

Wyndham Int'l, Inc. (2002) 102 Cal.AppAth 1327, 1333-1334.)

Oracle also cannot maintain a claim for "unfair" business practices under the VCL, because it

cannot demonstrate that HP's conduct "significantly threatens or harms competition," a requirement

for competitor actions. (Cel-Tech Commc 'ns, Inc. v. Los Angeles Cellular Tel. Co. (1999) 20 Cal.4th

163, 186-187 (Cel-Tech).) In Cel-Tech, the Supreme Court of California surveyed the various

definitions of "unfair" business practices and criticized the "purely subjective" definitions as "too

amorphous and provid[ing] too little guidance to courts and businesses." (ld. at pp. 184-185.) The

Court "sympathize[d]" with California businesses' "need to know, to a reasonable certainty, what

8 Oracle also cannot "stand in the shoes" of consumers; it must assert its own alleged injuries as a result ofHP's alleged misstatements or omissions. (Kwikset, supra, 51 Cal.4th at p. 323 ["It suffices to say that, in sharp contrast to the state of the law before passage of Proposition 64, a private plaintiff filing suit [under the VCL and F AL] must now establish that he or she has personally suffered such harm."], emphasis added.) Even before the passage of Proposition 64, California courts precluded efforts by private plaintiffs to assert claims on behalf of parties that were capable of protecting their own interests (as are the sophisticated purchasers in this case): the "undisputed evidence established that [all ofHP's Itanium] customers are sophisticated corporations ... each of which negotiates contracts individually with [HP] and each of which presumably has the resources to seek damages or other relief from [HP]," if there was wrongdoing. (Rosenbluth Int'l, Inc. v. Super. Ct. (2002) 101 Cal.AppAth 1073, 1077; accord Sybersound Records, Inc. v. UAVCorp. (9th Cir. 2008) 517 F.3d 1137,1153.)


CASE NO.: l-11-CV-203163

1 conduct California law prohibits and what it permits." (Id. at p. 185.) As an appellate court observed,

2 "a poorly defined standard of what is 'unfair' under the unlawful competition law 'may even lead to

3 the enjoining of pro competitive conduct and thereby undermine consumer protection .... '" (Chavez

4 v. Whirlpool Corp. (2001) 93 Cal.App.4th 363,374, quoting Cel-Tech, supra, 20 Cal.4th at p. 185.)

5 As a result of these concerns, Cel-Tech limited the types of "unfair" practices that were

6 actionable among competitors and required that "any finding of unfairness to competitors ... be

7 tethered to some legislatively declared policy or proof of some actual or threatened impact on

8 competition." (Cel-Tech, supra, 20 Cal.4th at p. 185.) The Court explained that "the word 'unfair' in

9 [Section 17200] means conduct that threatens an incipient violation of an antitrust law, or violates the

10 policy or spirit of one of those laws ... or otherwise significantly threatens or harms competition."

11 (Ibid.) Thus, where a competitor fails to tether its VCL claim to a violation of the antitrust laws or

12 similar laws, courts reject the claim. (See, e.g., Sybersound, supra, 517 F.3d at p. 1153.)

13 Here, Oracle cannot establish that HP's defensive actions and truthful statements about

14 Itanium's lifespan "significantly threatens or harms competition." (Cel-Tech, supra, 20 Cal.4th at

15 pp. 186-187; see also ProconGPS, Inc. v. Star Sensor LLC (N.D.CaL, Nov. 29, 2011, No. 11-3975)

16 2011 WL 5975271, at p. 3 [dismissing claim based on allegation that plaintifflost customers as a

17 result of the alleged misrepresentations, because "[h]arm to a competitor is not the same as harm to

18 competition"]; Watson Labs., Inc. v. Rhone-Poulenc Rorer, Inc. (C.D.Cal. 2001) 178 F.Supp.2d 1099,

19 1119 [granting summary judgment where plaintiffs "evidence merely indicates harm to its

20 commercial interests, rather than harm to competition"].) For this reason as well, the Court should

21 dismiss Oracle's VCL claims.

22 V. THE UNDISPUTED FACTS BAR ORACLE'S DEFAMATION CLAIM

23 Oracle attempts to base its defamation claim on statements HP made in response to Oracle's

24 announced decision to discontinue software development on the Itanium platform. (FACC 33,84.)

25 Because none of the statements declare or imply a "provably false assertion of fact," Oracle cannot

26 maintain a claim for defamation and the Court should grant summary judgment. (Franklin v. Dynamic

27 Details, Inc. (2004) 116 Cal.App.4th 375,385.)

28 To defame, a statement must at a minimum be "objectively verifiable" as true or false.


18 HP'S MOTION FOR SUMMARY JUDGMENT AND/ORADJUDICATION ON ORACLE'S CROSS-COMPLAINT

CASE NO.: l-11-CV-203163

1 (Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1,21-22, quotation marks and citation omitted.) "It

2 is an essential element of defamation that the publication be of a false statement of/act rather than

3 opinion .... [and] whether a communication was a statement of fact or of opinion is a question of law

4 to be decided by the court." (Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359,

5 1383, original italics; Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596,601 ["The critical

6 determination of whether the allegedly defamatory statement constitutes fact or opinion is a question

7 of law."]; see also Civ. Code, § 45 [defining libel as a ''false and unprivileged publication by

8 writing."], italics added.)

9 None of the statements identified by Oracle-including purported statements that Oracle's

10 Itanium decision was "anticompetitive," "self-interested," or a "bully[ing] tactic[]" (FACC 33)9-is

11 capable of being proved false. In fact, courts have found nearly identical statements to be non-

12 actionable opinion. In Toledo Heart Surgeons, Inc. v. Toledo Hosp. (2003) 154 Ohio App.3d 694, the

13 court affirmed a grant of summary judgment for a surgeon because his statements that the hospital

14 engaged in "'anti-competitive business ... all relate to ... unverifiable opinion." (Id.

15 at 702, emphasis added.) And in Taylor v. CNA Corp. (E.D.va. 2010) 782 F.Supp.2d 182, the court

16 granted summary judgment because accusations of "bullying" were not defamatory "since these are

17 matters of opinion." (Id. at p. 202 & fn. 12, emphasis added.)

18 Whether Oracle truly acted out of self-interest, for example, involves the "application of an

19 ethical standard to facts, reflecting the exercise of judgment. The judgment may, of course, be

20 reasonable or unreasonable; but ... the expressed belief ... does not imply an objective fact that can be

21 proved to be true or false." (Savage v. Pac. Gas & Elec. Co. (1993) 21 Cal.App.4th 434,444-445,

22 cert. denied, (1994) 513 U. S. 820 [affirming summary adjudication because accusation that a reporter

23 had a "conflict of interest" is not "capable of being proved as false or true"].)

24 Oracle also attempts to manufacture statements of "fact" through innuendo. Specifically, it

25 alleges that HP's March 24, 2011 customer letter "falsely suggests that Oracle discontinued or

26 otherwise interrupted its support for Oracle's Itanium-based software." (FACC 33 [citing Ex. 20],

27

28 9 For a full list of the alleged statements, see fn. 3, supra.



CASE NO,: 1-11-CV-203163

1 emphasis added.) But Oracle's "innuendo allegations are not supported by the letter's words." (Okun

2 v. Superior Court (1981) 29 Cal. 3d 442,450.) As the first and fourth sentences make clear, the

3 customer letter concerns Oracle's decision to "discontinue all software development" for Itanium

4 (Ex. 20, italics added), which, according to Oracle's CEO, is a perfectly accurate characterization of

5 what Oracle actually did. (Ex. 22 at pp. 45:10-16, 61:10-18, 129:3-6.) The letter did not state or

6 suggest that Oracle interrupted software support for Itanium. Oracle may not mangle the letter's

7 closing sentence (which uses the word "support" in a clearly non-technical sense) and offer a technical

8 meaning that is contrary to the '''content of the communication taken as a whole.'" (Okun, supra, 29

9 Ca1.3d at p. 450, quoting Gregory, supra, 17 Cal.3d at pp. 600-601.) This Court may determine

10 "whether a statement is reasonably susceptible to a defamatory interpretation" as a matter oflaw.

11 (Smith v. Maldonado (1999) 72 Cal.AppAth 637,647.)

12 Finally, summary judgment is appropriate here because it "is a favored remedy in defamation

13 ... cases due to the chilling effect of protracted litigation on First Amendment rights." (Couch v. San

14 Juan Unified School Dist. (1995) 33 Cal.AppAth 1491, 1498; Reader's Digest Assn. v. Superior Court

15 (1984) 37 Ca1.3d 244,251 [same]; Good Gov't Group o/Seal Beach, Inc. v. Superior Court (1978) 22

16 Ca1.3d 672,685 [same].) The "courts impose more stringent burdens on one who opposes the motion

17 and require a showing of high probability that the plaintiff will ultimately prevail in the case. in the

18 absence of such showing, the courts are inclined to grant the motion and do not permit the case to

19 proceed past the summary judgment stage." (Couch, supra, 33 Cal.AppAth at pp. 1498-1499,

20 quotation marks and citations omitted.)

21 VI. CONCLUSION

22 For these and all of the foregoing reasons, Plaintiff and Cross-Defendant Hewlett-Packard

23 Company respectfully requests that the Court grant this Motion.

24 DATED: March 26, 2012 GIBSON, DUNN & CRUTCHER LLP

25

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BARTLIT BECK HERMAN PALENCHAR & SCOTT LLP

By: /s/ Samuel G. Liversidge Samuel G. Liversidge

Attorneys for Plaintiff and Cross-Defendant, HEWLETT -PACKARD COMPANY


CASE NO.: 1-11-CV-203163

HP Summary Motion

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