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STOLL STOLL BERNE LOKTING & SHLACHTER P.C.

209 S.W. OAK STREET, SUITE 500

PORTLAND, OREGON 97204

TEL. (503) 227‐1600 FAX (503) 227‐6840

IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF MULTNOMAH

ORACLE AMERICA, INC., a Delaware Corporation,

Plaintiff,

v.

KEVIN LOOPER, PATRICIA MCCAIG, SCOTT NELSON, TIM RAPHAEL, and MARK WIENER, as individuals,

Defendants.

Case No. 15-cv-04705

DEFENDANTS KEVIN LOOPER, PATRICIA MCCAIG, SCOTT NELSON, TIM RAPHAEL AND MARK WIENER’S SPECIAL MOTION TO STRIKE, PURSUANT TO ORS 31.150 AND MEMORANDUM IN SUPPORT

ORAL ARGUMENT REQUESTED

-i-

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TEL. (503) 227‐1600 FAX (503) 227‐6840

TABLE OF CONTENTS

UTCR 5.010 CONFERRAL ........................................................................................................... 1

UTCR 5.050 INFORMATION ....................................................................................................... 1

MOTION ......................................................................................................................................... 1

ORCP 68C(2) NOTICE OF INTENT TO SEEK RECOVERY OF ATTORNEYS FEES ............ 3

MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 3

I. INTRODUCTION ............................................................................................................... 3

II. SUMMARY OF RELEVANT EVENTS AND ALLEGATIONS ..................................... 4

III. ORACLE’S SOLE CAUSE OF ACTION .......................................................................... 6

IV. ORACLE’S CLAIM CANNOT SURVIVE OREGON’S ANTI-SLAPP STATUTE ........ 7

A. Oregon’s Anti-SLAPP Statute ................................................................................ 7

B. Defendants’ Alleged Conduct is Covered by ORS 31.150(2)............................... 10

1. Oracle’s Allegations Arise Out of Conduct in Furtherance of Defendants’ Exercise of Speech and Petition Rights in Connection With a Public Issue. ................................................................................... 10

2. Oracle’s Allegations Also Arise Out of Statements Made in Legislative Proceedings and In Places Open to the Public. ......................................... 13

V. ORACLE CANNOT ESTABLISH A VIABLE PRIMA FACIE CASE ........................... 14

A. Neither the Allegations Nor Oracle’s Anticipated Evidence Can Support a Claim for Intentional Interference with Economic Relations ............................. 14

B. An Interference Claim Cannot be Based on Constitutionally Protected Activity. ................................................................................................. 17

CONCLUSION ............................................................................................................................. 19

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Page 1 - DEFENDANTS KEVIN LOOPER, PATRICIA MCCAIG, SCOTT NELSON, TIM RAPHAEL AND MARK WIENER’S SPECIAL MOTION TO STRIKE AND MEMORANDUM STOLL STOLL BERNE LOKTING & SHLACHTER P.C.



TEL. (503) 227‐1600 FAX (503) 227‐6840

UTCR 5.010 CONFERRAL

Counsel for Defendants made a good faith effort to confer with counsel for Oracle

America, Inc. (“Oracle”) prior to filing this motion. Specifically, on March 27, 2015, counsel

for Defendants Kevin Looper and Mark Wiener sent a conferral letter (in which counsel for all

Defendants joined) to Oracle’s counsel seeking to confer over the issues raised in this motion.

Counsel for Defendants then conferred with Oracle’s counsel by telephone on March 31, 2015,

but the parties were unable to resolve the issues raised in this motion. Declaration of Steven

C. Berman in Support of Motion to Strike (“Berman Dec.”), ¶ 2.

UTCR 5.050 INFORMATION

Oral argument is requested. Defendants estimate that one hour will be required for

argument on this motion. Official court reporting services are requested.

MOTION

Defendants Kevin Looper, Patricia McCaig, Scott Nelson, Tim Raphael and Mark

Wiener (collectively “Defendants”) move this court for an Order dismissing the claim alleged

in Oracle’s Complaint, pursuant to ORS 31.150, et seq., Oregon’s anti-SLAPP statute.1 This

motion should be granted because:

(1) Oracle’s Complaint alleges interference with its economic relations by means

of Defendants’ communications. ORS 31.150 provides for the early dismissal of unsupported

claims that arise out of a defendant’s speech or petition rights.

(2) Oracle will not be able to meet the statutory requirement to present “substantial

evidence to support a prima facie case” for intentional interference with economic relations.

ORS 31.150(3). This is so for two reasons.

First, as a factual matter, Oracle’s allegations do not make out the basic elements of a

claim for intentional interference with economic relations. Oracle has insinuated much but has

1SLAPP is the acronym for “strategic lawsuits against public participation.” Horton v. Western Protector Ins. Co., 217 Or App 443, 452, 176 P3d 419 (2008).




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Page 2 - DEFENDANTS KEVIN LOOPER, PATRICIA MCCAIG, SCOTT NELSON, TIM RAPHAEL AND MARK WIENER’S SPECIAL MOTION TO STRIKE AND MEMORANDUM

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alleged little regarding Defendants’ specific acts. The complaint references approximately a

dozen communications to or from Defendants over the course of four months, and offers no

link between any Defendant’s activities and the decision by the Oregon Health Insurance

Corporation (“Cover Oregon”) Board of Directors to terminate its relationship with Oracle.

Oracle’s evidentiary showing in support of its allegations will also be deficient.

Second, Oracle has alleged that Defendants engaged in communications for a political

purpose in order to influence the decision of a public body. If true, these alleged activities are

constitutionally protected under the First Amendment to the United States Constitution and

Article I, sections 8 and 26 of the Oregon Constitution.2 Constitutionally protected speech and

petitioning activities cannot be the basis for tort liability. As a legal matter, this claim must be

dismissed.

This motion is supported by the following memorandum of points and authorities, the

Declaration of Steven C. Berman and documents attached thereto, filed concurrently with this

motion, and the pleadings and papers on file.

2 Article I, section 8 of the Oregon Constitution provides:

“No law shall be passed restraining the right of free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.”

Article I, section 26 of the Oregon Constitution provides:

“No law shall be shall be passed restraining any of the inhabitants of the State from assembling together in a peaceable manner to consult for their common good; nor from instructing their Representatives; nor from applying to the Legislature for redress of greviances [sic].”

The First Amendment to the United States Constitution provides in relevant part:

“Congress shall make no law * * * abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”




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ORCP 68C(2) NOTICE OF INTENT TO SEEK RECOVERY OF ATTORNEYS FEES

Defendants allege that they are entitled to seek, and intend to seek, recovery of their

reasonable attorneys’ fees and costs incurred herein pursuant to ORS 31.152(3).

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

In this lawsuit, Oracle has sued five individuals for alleged intentional interference

with the agreement between Oracle and the Oregon Health Insurance Exchange Corporation

(“Cover Oregon”). Complaint, ¶ 1.3 Defendants are privately employed professionals.

Defendants are not Cover Oregon decision makers. Id. at ¶ 42. Instead, Oracle alleges that

Defendants participated in the political arena as advisors to Governor Kitzhaber and, by means

of campaign messaging and other communications, persuaded the Cover Oregon Board to end

its contract with Oracle.

As alleged, Cover Oregon hired Oracle to develop the state’s health insurance

exchange to enroll Oregonians seeking health insurance under the Affordable Care Act

(“ACA”). When the website failed to launch on October 1, 2013, the relationship between

Oracle and Cover Oregon deteriorated until, by late February 2014, Oracle and Cover Oregon

had negotiated an agreement transitioning Oracle off the state exchange project and resolving

some of the payments Cover Oregon had withheld since October. Complaint, ¶ 46. In April

2014, the Cover Oregon Board voted to abandon efforts to develop a state health insurance

exchange using Oracle’s platform and switch to the federal health insurance exchange.

Complaint, ¶ 39.

3A copy of Oracle’s Complaint in this case is attached as Exhibit 1 to the Berman Dec.




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This is the fourth lawsuit arising out of the October 2013 failure of the website for the

Oregon Health Exchange. Who is to blame for that failure is the subject of Rosenblum, et al.

v. Oracle America, Inc., et al., Marion County Circuit Court Case No. 14C20043. In that

litigation, the State sued Oracle for fraud, violations of the Oregon False Claims Act, breach of

contract, and civil racketeering. The State also sued six Oracle executives for personal liability

for violations of the False Claims Act. Copies of the Complaint in that case (the “AG’s

Complaint”) and Oracle’s Answer, Affirmative Defenses and Counterclaims (“Oracle’s

Answer to the AG’s Complaint”) are attached as Exhibits 2 and 3 to the Berman Dec.

In addition to the State’s lawsuit, Oracle sued Cover Oregon and other state entities in

federal court for copyright infringement. Oracle America, Inc. v. The Oregon Health

Insurance Exchange Corporation, dba Cover Oregon, et al., United States District Court,

District of Oregon (Portland Division) Case No. 3:14-cv-01279-BR. A copy of Oracle’s

Second Amended Complaint in that case (“Oracle’s Copyright Complaint”) is attached as

Exhibit 4 to the Berman Dec.

Finally, in February 2014, the State sued Oracle to prevent Oracle from terminating

hosting services for the Oregon Health Authority’s system for enrolling eligible Oregonians in

Medicaid. That case is State of Oregon v. Oracle America, Inc., Marion County Circuit Court

Case No. 15CV03287. A copy of the State’s Amended Complaint in that case (“State’s

Medicaid Complaint”) is attached as Exhibit 5 to the Berman Dec.

II. SUMMARY OF RELEVANT EVENTS AND ALLEGATIONS

The Oregon legislature established Cover Oregon in 2011 as a public corporation

authorized to, among other duties, “[a]dminister a health insurance exchange in accordance

with federal law to make qualified health plans available to individuals and groups throughout

this state.” ORS 741.002(1)(a); Or Laws 2011 ch 415. Cover Oregon was governed by a




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nine-member board of directors. ORS 741.025(1) (2013). The members included the Director

of the Oregon Health Authority, the Director of the Department of Consumer and Business

Services, and seven individuals with enumerated expertise appointed by the Governor subject

to confirmation by the Senate. ORS 741.025(1), (2), (4), (5), (6) (2013). The Board appointed

an Executive Director, who served at the pleasure of the Board. ORS 741.201(1) (2013).4

As alleged, in March 2013, Cover Oregon hired Oracle to develop the state’s health

insurance exchange, which included a website for open enrollment under the ACA.

Complaint, ¶¶ 4, 6. On the October 1, 2013 deadline, the website was not operational and

could not be used to enroll those seeking health insurance. Id. at ¶ 4. As a result of the failed

launch, Cover Oregon began withholding payments to Oracle. Id. at ¶¶ 43-45. See also AG’s

Complaint, ¶ 142; Oracle’s Answer to the AG’s Complaint, ¶ 150 (describing payments for

Oracle services that were “long-overdue” by February 2014); Oracle’s Copyright Complaint,

¶¶ 63-65 (documenting Oracle’s deteriorating relationship with Cover Oregon leading up to

and following the failed October 2013 launch).5

The website’s failure, Oracle’s role in the failure, and Cover Oregon’s alternatives for

ensuring a working website by November 1, 2014 (the beginning of the next enrollment

period), allegedly were issues of widespread public discussion and concern. See Complaint, ¶¶

21-22 (describing media interest).

At the beginning of March 2014, Cover Oregon convened a workgroup to review the

state’s options, which included a state exchange with Oracle, a state exchange with another

technology vendor, or a switch to the federal exchange. Complaint, ¶ 32. None of the

Defendants in this case were members of the workgroup. Id. at ¶ 42.

4The Oregon Health Exchange was abolished by the Oregon legislature, effective March 5, 2015. Or Laws 2015 ch 3. 5A party’s allegation in another proceeding is an admission against interest which this court can accept as evidence. Moudy v. Boylan, 219 Or 448, 463, 347 P2d 983 (1959).




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On April 25, 2014, the Cover Oregon Board voted unanimously to transition from the

state exchange to the federal health insurance exchange. Complaint, ¶ 39; AG’s Complaint,

¶ 153. None of the Defendants in this case were members of the Cover Oregon Board.

Complaint, ¶ 42.

By the time the Defendants here are alleged to have done anything regarding the

Oracle-Cover Oregon relationship (February – May 2014): the website had failed to launch in

October 2013; the Cover Oregon Board had stopped paying Oracle for work after October

2013; the Cover Oregon “disaster” was front page news (Complaint, ¶ 21); and Governor

Kitzhaber, state health officials, and the Cover Oregon Board were urgently trying to decide

how to achieve a functioning health insurance exchange, with or without Oracle, by the critical

next deadline in November 2014.

III. ORACLE’S SOLE CAUSE OF ACTION

Oracle alleges that Defendants intentionally interfered with its economic relations with

Cover Oregon. This requires pleading and proof of: (1) the existence of a business

relationship; (2) intentional interference with that relationship; (3) by a third party; (4)

accomplished through improper means or for an improper purpose; (5) a causal effect between

the interference and damage to the economic relationship; and (6) damages. Allen v. Hall, 328

Or 276, 281, 974 P2d 199 (1999).

The Complaint makes numerous vague allegations based, apparently, on hearsay

newspaper reports rather than actual evidence. Despite more than 30 pages and 71 separate

paragraphs of allegations, there are very few specific allegations against any of the

Defendants. Oregon pleading rules, of course, require specific factual allegations. Durham v.

City of Portland, 181 Or App 409, 419 n 9, 45 P3d 998 (2002) (rejecting notice pleading and

holding that “pleadings in Oregon courts must state ultimate facts”); Humbert v. Sellars, 300




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Or 113, 129 n 4, 708 P2d 344 (1985) (noting that the Council on Court Procedures deliberately

decided “to retain a requirement of fairly specific description of facts as opposed to adopting

the less specific fact description allowable in federal courts,” and clarifying that the “necessity

of pleading ultimate facts retains the present Oregon requirements of pleading facts at a fairly

specific level”) (emphasis added; internal quotation marks omitted; citation omitted). Oracle’s

failure to provide such allegations is telling. Indeed, at least 45 separate allegations in the

complaint are made on “information and belief.” See Complaint, ¶¶ 6-10, 20, 22-25, 27, 28,

30, 33-36, 40-42, 47, 50, 51 53, 55, 57-60, 63, 64 (so alleging).

To the extent there are specific factual allegations against Defendants, they are sparse.

The only allegations specific to any Defendant are:

Kevin Looper, Mark Wiener, and Tim Raphael are alleged to have received two emails from Governor Kitzhaber in late February and early April 2014 about the payment dispute between Cover Oregon and Oracle. Complaint, ¶ 46.

Patricia McCaig is alleged to have run a meeting at which Cover Oregon was discussed (Complaint, ¶¶ 35, 49), to have sent and received three emails to and from the Governor and others regarding the Cover Oregon crisis (Id. at ¶¶ 30, 36, 57), and to have spoken with Clyde Hamstreet, interim executive director of the Cover Oregon Board (Id. at ¶ 38). Ms. McCaig is also alleged to have drafted Governor Kitzhaber’s letter to the Attorney General requesting legal action against Oracle, after the Cover Oregon Board voted to end its contract with Oracle. Id. at ¶ 57.

Tim Raphael and Patricia McCaig are alleged to have edited the proposed congressional testimony of Greg Van Pelt, an Oregon health policy advisor. Complaint, ¶ 49. Tim Raphael is alleged to have sent an email to Governor Kitzhaber regarding coordination about media inquiries about the Cover Oregon crisis. Id. at ¶ 55.

There are no allegations specific to Scott Nelson.

IV. ORACLE’S CLAIM CANNOT SURVIVE OREGON’S ANTI-SLAPP STATUTE

A. Oregon’s Anti-SLAPP Statute

ORS 31.150, et seq., is Oregon’s “anti-SLAPP” statute. The purpose of the law is “to

provide for the dismissal of claims against persons participating in public issues * * * before




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the defendant is subject to substantial expenses in defending against them.” Staten v. Steel,

222 Or App 17, 29, 191 P3d 778 (2008) (citation omitted), review denied, 345 Or 618 (2009).

See also Staten, 222 Or App at 27 (legislature enacted ORS 31.150 to “permit a defendant who

is sued over certain actions taken in the public arena to have a questionable case dismissed at

an early stage”). ORS 31.152(4) requires that the anti-SLAPP statute “be liberally construed

in favor of the exercise of the rights of expression described in ORS 31.150(2).”

ORS 31.150 provides that a defendant may file a special motion to strike “against any

claim in a civil action that arises out of:

“(a) Any oral statement made, or written statement or other document submitted, in a legislative, executive or judicial proceeding or other proceeding authorized by law;

“(b) Any oral statement made, or written statement or other document submitted, in connection with an issue under consideration or review by a legislative, executive or judicial body or other proceeding authorized by law;

“(c) Any oral statement made, or written statement or other document presented, in a place open to the public or a public forum in connection with an issue of public interest; or

“(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”

ORS 31.150(2).

Resolution of an anti-SLAPP motion brought under ORS 31.150, “requires that the

Court engage in a two-step burden shifting process.” Young v. Davis, 259 Or App 497, 501,

314 P3d 350 (2013). At the first step, the defendant must show only that the claim against

which the motion is made “‘arises out of’ one or more protected activities described in

subsection (2).” Young, 259 Or App at 501. The defendant may make that showing “based on

the pleadings alone.” Staten, 222 Or App at 31. Once the defendant meets that minimal

threshold, “the burden shifts to the plaintiff in the action to establish that there is a probability

that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima




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facie case.” ORS 31.150(3). See, e.g., Young, 259 Or App at 501 (discussing burden-shifting

under ORS 31.150). See also Oregon Educ. Ass’n v. Parks, 253 Or App 558, 566, 291 P3d

789 (2012) (“ORS 31.150(3) expressly shifts the burden of production of evidence onto the

nonmoving plaintiff, and it requires a court to evaluate the evidence and draw a conclusion as

to whether there is a probability that the plaintiff will prevail”), review denied, 353 Or 867

(2013). If the plaintiff cannot meet that burden, its claim is dismissed, without prejudice.

ORS 31.150(1). In resolving the motion to strike, the Court “shall consider the pleadings and

supporting and opposing affidavits stating the facts upon which the liability or defense is

based.” ORS 31.150(4).

An anti-SLAPP motion must be filed within 60 days of service of a complaint and

before any responsive pleading is filed. ORS 31.152(1); Horton v. Western Protector Ins. Co.,

217 Or App 443, 453, 176 P3d 419 (2008). The motion “shall be treated as a motion to

dismiss under ORCP 21.” ORS 31.150(1). Once a party files an anti-SLAPP motion,

discovery automatically is stayed. ORS 31.152(2). See also Page v. Parsons, 249 Or App

445, 456-459, 277 P3d 609 (2012) (discussing discovery stay). A defendant who prevails on

an anti-SLAPP motion “shall be awarded reasonable attorney fees and costs.” ORS 31.152(3).

In summary, Oregon’s anti-SLAPP motion provides a party that is sued for engaging in

protected speech an opportunity to have the case dismissed before it advances past the

pleadings stage. If the moving party shows that the allegations against that party fall within

one of the categories set forth in ORS 31.150(2), the burden shifts to the plaintiff to present

“substantial” prima facie evidence in support of each material allegation in the plaintiff’s

complaint. It the plaintiff is unable to do so, the complaint is dismissed. There is no discovery

while the motion is pending.

As is set forth below, Oracle’s claims against each Defendant should be stricken under

ORS 31.150, because Oracle will be unable to establish that its claim against any Defendant




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will succeed. It is Oracle’s burden to establish a probability of success on the merits of its

claim against each Defendant, and it is Oracle’s burden to come forth with “substantial

evidence” as to each element of its claim as to each Defendant. ORS 31.150(3). Oracle

cannot clear its hurdles.

B. Defendants’ Alleged Conduct is Covered by ORS 31.150(2).

1. Oracle’s Allegations Arise Out of Conduct in Furtherance of Defendants’ Exercise of Speech and Petition Rights in Connection With a Public Issue.

The allegations in Oracle’s complaint fall well within the parameters of ORS

31.150(2). Oracle has alleged that Defendants – “each of whom served as an advisor to the

2014 reelection campaign of former Oregon Governor John Kitzhaber” – orchestrated a

“political strategy of falsely and publicly blaming Oracle to deflect blame from Governor

Kitzhaber” “to serve the Kitzhaber campaign’s self-interested political purpose of winning

reelection.” Complaint, ¶¶ 1, 6, 30. Oracle accuses Defendants of tortiously interfering with

Oracle’s economic relationship with Cover Oregon through their participation in the political

process.

For the purposes of ORS 31.150(2)(d), the allegations in the Complaint arise out of

alleged “conduct in furtherance of the exercise of the constitutional right of petition or the

constitutional right of free speech * * *.” The vast majority of the material allegations in

Oracle’s complaint – although vague, often not attributed to any specific defendant, and made

only “on information and belief” – pertain to alleged conduct regarding Governor Kitzhaber’s

2014 reelection campaign. See, e.g., Complaint at ¶¶ 1, 6, 8, 10, 21, 22, 23, 24, 27, 29, 30, 35,

36, 41, 42, 47, 58, 59, 61, 68 (so alleging).

Political speech is protected under Article I, sections 8 and 26 of the Oregon

Constitution. See, e.g., Oregon State Police Ass’n, Inc. v. State, 308 Or 531, 536, 783 P2d 7

(1989) (“[p]olitical speech is an essential form of expression protected by Article I, section




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8”). Political speech is also protected under the First Amendment of the United States

Constitution. See, e.g., McIntyre v. Ohio Elections Com’n, 514 US 334, 347, 115 S Ct 1511,

131 L Ed 2d 426 (1995) (political speech, whether regarding a candidate or a specific issue, “is

the essence of First Amendment expression”). It is well-settled that “running for public office

is one of the means of political expression” encompassed by Article I, section 8 and the First

Amendment. Minielly v. State, 242 Or 490, 499, 411 P2d 69 (1966). Moreover, the rights of

free expression exercised during the course of an election “have been termed the ‘cornerstone

of democracy’ and so important as to require ‘breathing space’ and protection from even the

‘chilling effect’ of overbroad and ambiguous statutory restrictions.” Deras v. Myers, 272 Or

47, 55, 535 P3d 541 (1975) (quoting New York Times Co. v. Sullivan, 376 US 254, 270, 84 S

Ct 710, 11 L Ed 2d 583 (1964)). As frequent participants in this process, political consultants

are entitled to the same speech protections as anyone else. See, e.g., O’Connor v. Superior

Court, 177 Cal App 3d 1013, 1018 (1986) (Cal App 5th Dist 1986) (rejecting argument that

speech by paid political consultants is not entitled to First Amendment protections).

For the purposes of ORS 31.150(2)(d), Defendants’ alleged conduct and statements

were made “in connection with a public issue or an issue of public interest.” First, the

allegations in the Complaint are all related to the failed efforts to establish a state health

insurance exchange under the ACA. The ACA is a touchstone public issue, and health care,

more generally, a matter of great public interest. See, e.g., Nat’l Fed’n of Indep Bus v.

Sebelius, ___ U.S. ___, ___, 132 S Ct 2566, 2609, 183 L Ed 2d 450 (2012) (“The provision of

health care today is a concern of national dimension”) (Ginsberg, J., concurring in part and

dissenting in part). Oracle repeatedly alleges that Defendants’ conduct detrimentally affected

the “public interest.”6

6See, e.g., Complaint, ¶ 24 (“Defendants took control of or improperly influenced important decision-making at Cover Oregon in order to ensure that Cover Oregon acted in furtherance of Governor Kitzhaber’s reelection strategy, rather than in the interests of Oregon citizens”); id.




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Second, Oracle repeatedly alleges that Defendants engaged in and sought to influence

public debate regarding Oregon’s health exchange.7 There can be little doubt that engaging in

public debate about a matter of public concern affects “an issue of public interest.”

Third, as was discussed above, Oracle’s claims and allegations pertain to Defendants’

alleged participation in Governor Kitzhaber’s statewide reelection campaign. Importantly,

Oracle alleges that Cover Oregon was a subject that Governor Kitzhaber’s opponent and the

media attacked during Governor Kitzhaber’s reelection campaign. Complaint, ¶¶ 21, 22.

Conduct related to political campaigns falls well within the ambit of ORS 31.150(2)(d). See,

e.g., Maston v. Dvorak, 40 Cal App 4th 539, 548 (Cal App 3rd Dist 1995) (speech in a

political campaign falls under California’s anti-SLAPP statute); Beilenson v. Superior Court,

44 Cal App 4th 944, 949 (Cal App 2nd Dist 1996) (rejecting argument that California’s anti-

SLAPP statute “does not apply to a political campaign”). 8 The allegations underlying

Oracle’s claim “arise out of * * * conduct in furtherance of the exercise of the constitutional

right of petition or the constitutional right of free speech in connection with a public issue or

at ¶ 26 (“Defendants put at risk the insurance subsidies that made health insurance affordable for a large number of Oregonians and thus put many Oregonians at risk of losing their health insurance altogether”); id. at ¶ 28 (Defendants’ conduct caused the state to abandon Oracle’s technology “which would have been in the best interests of the people of the State of Oregon”); id. at ¶ 42 (Defendants actions were not “motivated * * * by the best interests of Oregon’s citizens”); id. at ¶ 47 (decision to transition Oracle off of health exchange project was not aimed at “serving the interests of the people of the State of Oregon”); id. at ¶ 69 (“Defendants put at risk the insurance subsidies that made health insurance affordable for a large number of Oregonians and thus have put many Oregonians at risk of losing their health insurance altogether”). 7See, e.g., Complaint ¶ 6 (Defendants sought to “end public discussion regarding Cover Oregon’s failures”); id. at ¶ 10 (Defendants sought to further “their own political objectives of ending public discussion of Oregon’s” health exchange); id. at ¶ 22 (Defendants’ strategy was “to end public discussion” of failures with Oregon’s health exchange); id. at ¶ 40 (alleging that Governor Kitzhaber took certain actions, on the advice of Defendants, to “end the public discussion of Oregon’s” health exchange). 8Oregon’s anti-SLAPP statute was modeled on California’s anti-SLAPP statute and California cases interpreting California’s statute provide guidance in interpreting Oregon’s statute. See, e.g., Page, 249 Or App at 462 (“[i]t was intended that California case law would inform Oregon courts regarding the application of ORS 31.150 to ORS 31.155”).




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an issue of public interest.” ORS 31.150(2)(d). Accordingly, they fall within the scope of

Oregon’s anti-SLAPP statute, and the burden now shifts to Oracle to provide prima facie

evidence of each element of its claim as to each Defendant.

2. Oracle’s Allegations Also Arise Out of Statements Made in

Legislative Proceedings and In Places Open to the Public.

Oracle’s allegations also fall within the reach of ORS 31.150(2)(a), (b) and (c).

Subsection (a) applies to oral and written statements made in legislative proceedings “or other

proceeding authorized by law.” Subsection (b) applies to oral or written statements submitted

“in connection with an issue under consideration or review by a legislative, executive or

judicial body or other proceeding authorized by law.” Subsection (c) applies to any oral or

written statement made in a place “open to the public,” or in a public forum.

Oracle accuses Defendants of somehow causing Greg Van Pelt “to publicly and

falsely” testify before Congress. Complaint, ¶¶ 48-50. Accordingly, Oracle’s claim “arises

out of” a statement made in a legislative proceeding, in connection with an issue under

consideration or review by a legislative body, and in a public forum. The allegations regarding

Defendants’ purported influence on Congressional testimony come within the parameters of

ORS 31.150(2)(a), (b) and (c).

Additional allegations in the Complaint “arise out of” statements made, or “documents

submitted, in connection with an issue under consideration or review by a legislative [or]

executive body * * * or other proceeding authorized by law.” ORS 31.150(2)(b). For

example, Oracle alleges that Cover Oregon is an independent public body that reports only to

the Oregon legislature. Complaint, ¶ 3. Oracle alleges that Defendants interfered with “direct

important decision making” by Cover Oregon. Id. at ¶ 9. Oracle further alleges that

Defendants influenced a workgroup study and eventually caused Cover Oregon to abandon

Oregon’s health exchange in favor of the federal exchange. Id. at ¶¶ 32-42. For that




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additional reason, the burden now shifts to Oracle to provide prima facie evidence of each

element of its claim as to each Defendant.

V. ORACLE CANNOT ESTABLISH A VIABLE PRIMA FACIE CASE

Because Defendants have shown that Oracle’s claim falls within the provisions of

Oregon’s anti-SLAPP statute, the evidentiary burden shifts to Oracle. Rather than rely – as it

does throughout its complaint – on mere “information and belief,” Oracle must now come

forward with “substantial evidence” to support a prima facie case of intentional interference

with economic relations. ORS 31.150(3). Oracle cannot succeed, because first, Oracle cannot

establish its interference claim on the merits, and second, the constitutionally protected speech

and petition activities alleged cannot be the basis for tort liability.

A. Neither the Allegations Nor Oracle’s Anticipated Evidence Can Support a Claim for Intentional Interference with Economic Relations

ORS 31.150 requires Oracle to come forward with substantial evidence of each

element of its claim. The elements of the claim are:

1. the existence of a business relationship;

2. intentional interference with that relationship;

3. by a third party;

4. accomplished through improper means or for an improper purpose;

5. a causal effect between the interference and damage to the economic

relationship; and

6. damages.

Allen, 328 Or at 281.

Oracle’s claim for intentional interference fails for a number of reasons, including the

following.




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First, Oracle makes no specific allegations that Defendants interfered with Oracle’s

relationship with Cover Oregon. Most of Oracle’s theory of “interference” is phrased in

conclusory terms devoid of any allegation of specific acts. The few concrete acts Oracle does

allege all involve communications that took place between February and May 2014. However,

as Oracle alleges both in this Complaint and in pleadings in prior related litigation, critical

parts of the factual predicate had occurred prior to the allegations here. For instance: (a)

Oracle’s relation with Cover Oregon was already seriously damaged, and, (b) Oracle and

Cover Oregon were already battling over the failed website, nonpayments to Oracle, and

whether Oracle would continue to work for Oregon. Complaint, ¶¶ 4, 43-45; Oracle’s Answer

to the AG’s Complaint, ¶ 150; Oracle’s Copyright Complaint, ¶¶ 63-65.

Second, Oracle must prove that Defendants acted for an improper purpose or through

improper means. Oracle must prove that Defendants’ interference was “wrongful by some

measure beyond the interference itself.” Top Service Body Shop, Inc. v. Allstate Ins. Co., 283

Or 201, 209, 582 P2d 1365 (1978). Oracle must establish that Defendants interfered for an

improper purpose rather than for a legitimate one, or that Defendants used improper means

resulting in injury to the plaintiff. But in none of the communications alleged did any of the

Defendants use improper means or motive. Moreover, the motive and means Oracle alleges –

that Defendants engaged in speech and petitioning activities – are legitimate ones and cannot

support tort liability. Furthering a political objective is constitutionally protected and cannot

be an “improper” purpose or motive. Brownsville Golden Age Nursing Home, Inc. v. Wells,

839 F2d 155, 160 n 1 (3rd Cir 1988) (“Nor does it further [plaintiff’s] claim to charge

repeatedly that [defendant] Senator Heinz acted for political reasons since political action is

the raison d’etre of our elected government officials.”). Speech and petitioning activities are

constitutionally protected and cannot constitute an “improper” means of committing the tort.




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NAACP v. Claiborne Hardware Co., 458 US 886, 907-915, 102 S Ct 3409, 73 L Ed 2d 1215

(1982).

In Kovac v. Crooked River Ranch Club & Maint. Ass’n., 186 Or App 545, 551-552, 63

P3d 1197, review denied, 336 Or 16 (2003), the Court of Appeals affirmed dismissal of a

claim for interference with business advantage because it was based on the defendant home

owners association’s efforts to persuade county officials to deny the plaintiff’s application for

a conditional use permit to run a business out of his home. The court held that such advocacy

activity was protected by Article I, section 8 of the Oregon Constitution, and could not support

tort liability. 186 Or App at 552.

The kinds of “improper means” recognized in Oregon law include “violence, threats, or

other intimidation, deceit, or misrepresentation, bribery, unfounded litigation, defamation or

disparaging falsehood.” Top Service Body Shop, Inc., 283 Or at 210 n 11. In other words, in

light of constitutional constraints, Oracle must allege and prove that Defendants engaged in

conduct that was outside constitutional protection. Oracle has failed to allege anything that

meets this requirement, and will be unable to present any evidence of improper means.

Finally, with respect to causation, Oracle must prove that but for the communications

of the Defendants, the state would not have ended its relation with Oracle. Allen, 328 Or at

281. ([t]here must be “a causal effect between the interference and the harm to the relationship

or prospective advantage”). This will be difficult, if not impossible, as Oracle’s own

allegations show that its relationship with Cover Oregon was tenuous at best following the

failure of the Cover Oregon website launch in October 2013 – long before any allegations

against the Defendants here.




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B. An Interference Claim Cannot be Based on Constitutionally Protected

Activity.

Entirely independent of whether constitutionally protected speech can be an “improper

means” or an “improper purpose,” Oracle’s claim additionally fails because for more than

three decades, it has been clear that tort liability for interference with economic relations

cannot be imposed for constitutionally protected activity. Claiborne Hardware Co., 458 US

886. Oracle is seeking to hold Defendants liable for what Oracle admits is Defendants’

political speech concerning the failed state insurance exchange website. Oracle’s complaint

clearly describes that Defendants were engaged in constitutionally protected activities. Such

conduct cannot be the basis for tort liability as a matter of federal and state constitutional law.

Oracle’s evidentiary showing will not cure this problem.

In Claiborne Hardware, the Court held that liability for interference with economic

relations cannot be constitutionally imposed when the motive for the interference is political

and the means by which it is accomplished includes speech. In that case, the NAACP

organized a boycott of white merchants. The organization accomplished the boycott through

speech, picketing, and publishing the names of black shoppers who violated the boycott. The

merchants sued for, among other things, interference with their business relations and

demanded lost earnings for a seven-year period. The Court held that defendants could not be

held liable for the consequences of their non-violent, constitutionally protected activity.

Claiborne Hardware, 458 US at 907-915.

It is well established that state tort claims cannot impose liability for constitutionally

protected speech and advocacy activity. See e.g., Sessions Tank Liners, Inc. v. Joor Mfg., Inc.,

17 F3d 295, 301-302 (9th Cir) (holding tort of interference with prospective economic

advantage inapplicable to communications made to public officials), cert denied, 513 US 813

(1994); Brownsville Golden Age Nursing Home, 839 F2d at 159-160 (holding that the




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defendants could not be liable for business interference for conducting a publicity and letter

writing campaign urging state regulators to decertify a nursing home; citing several cases);

Rudoff v. Huntington Symphony Orchestra, Inc., 91 Misc 2d 264, 266, 397 NYS 2d 863 (1977)

(declining to extend tort of interference to situations where citizen petitions his government,

and finding that “Plaintiff’s right to petition his government is privileged and is superior to

defendant’s right to maintain an action for interference”). Sierra Club v. Butz, 349 F Supp

934, 936-939 (ND Cal 1972) (holding that persons who were successful in persuading the

Forest Service to abandon its timber sales program could not be liable for interference with

timber company’s advantageous relationship, regardless of motive). See also United Mine

Workers v Pennington, 381 US 657, 670, 85 S Ct 1585, 14 L Ed 2d 626 (1965) (finding no

anti-trust liability for a concerted effort to influence public officials “regardless of intent or

purpose”); Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 US 127,

137-145, 81 S Ct 523, 5 L Ed 2d 464 (1961) (reversing anti-trust violations against the

defendants, who had organized publicity campaign intended to influence the passage of laws

damaging to the plaintiffs’ industry; motive and effect on the plaintiffs’ industry irrelevant).

The law requires that Oracle’s complaint must be dismissed.




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CONCLUSION

Defendants’ motion to strike Oracle’s complaint should be granted.

DATED this 1st day of April, 2015.

STOLL STOLL BERNE LOKTING & SHLACHTER P.C. By: /s/ Steven C. Berman

Steven C. Berman, OSB No. 951769 209 SW Oak Street, Suite 500 Portland, OR 97204 Telephone: (503) 227-1600 Facsimile: (503) 227-6840 Email: [email protected] Attorneys for Defendants Kevin Looper and Mark Wiener

Trial Attorney for Defendants Kevin Looper and Mark Wiener: Steven C. Berman /s/ Maureen Leonard Maureen Leonard, OSB No. 823165 P.O. Box 42210 Portland, OR 97242 Telephone: (503) 224-0212 Email: [email protected] Attorney for Defendant Patricia McCaig Trial Attorney for Defendant Patricia McCaig: Maureen Leonard




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PERKINS COIE LLP By: /s/ Thomas R. Johnson Thomas R. Johnson, Jr., OSB 010645 Alletta S. Brenner, OSB 142844 1120 NW Couch Street, Tenth Floor Portland, Oregon 97209-4128 Telephone: (503) 727-2000 Facsimile: (503) 727-2222 Email: [email protected] [email protected] Attorneys for Defendant Tim Raphael Trial Attorney for Defendant Tim Raphael: Thomas R. Johnson KAUFFMAN KILBERG LLC By: /s/ Jamie S. Kilberg Jamie S. Kilberg, OSB 110465 Samuel C. Kauffman OSB 943527 1001 SW Fifth Ave., Suite 1414 Portland, Oregon 97204 Telephone: 503-224-2595 Facsimile: 503-224-3203 Email: [email protected] [email protected] Trial Attorney for Defendant Scott Nelson: Jamie S. Kilberg

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Page 1 - CERTIFICATE OF SERVICE




TEL. (503) 227‐1600 FAX (503) 227‐6840

CERTIFICATE OF SERVICE

I hereby certify that I caused to be served the foregoing DEFENDANTS KEVIN

LOOPER, PATRICIA MCCAIG, SCOTT NELSON, TIM RAPHAEL AND MARK

WIENER’S SPECIAL MOTION TO STRIKE, PURSUANT TO ORS 31.150 AND

MEMORANDUM IN SUPPORT on the following named person(s) on the date indicated

below by hand-delivering, faxing, e-mailing or mailing (as indicated below) to each true copies

thereof, and if mailed, contained in a sealed envelope, with postage prepaid, addressed to said

person(s) at the last known address of each shown below and deposited in the United States Post

Office on said day at Portland, Oregon:

Daniel Dunne Orrick Herrington & Sutcliffe LLP 701 Fifth Avenue, Suite 5600 Seattle, WA 98104-7097 Email: [email protected] Attorneys for Plaintiff Oracle America, Inc.

by hand delivery by facsimile by first-class mail by e-mail

Karen G. Johnson-McKewan Robert S. Shwarts Orrick Herrington & Sutcliffe LLP 405 Howard Street San Francisco, CA 94105-2625 Email: [email protected] [email protected] Attorneys for Plaintiff Oracle America, Inc.


Jamie Gorelick Edward N. Siskel Charles C. Speth Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Avenue Washington D.C. 20006 Email: [email protected] [email protected] [email protected] Attorneys for Plaintiff Oracle America, Inc.


{SSBLS Main Documents\8572\001\00511902-1 }

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Page 2 - CERTIFICATE OF SERVICE




TEL. (503) 227‐1600 FAX (503) 227‐6840

Milo Petranovich Pilar French Lane Powell PC 601 SW 2nd Ave., Suite 2100 Portland OR 97204-3158 Email: [email protected] [email protected] Attorneys for Plaintiff Oracle America, Inc.


DATED this 1st day of April, 2015.

STOLL STOLL BERNE LOKTING & SHLACHTER P.C. By: /s/ Steven C. Berman

Steven C. Berman, OSB No. 951769 209 SW Oak Street, Suite 500 Portland, OR 97204 Telephone: (503) 227-1600 Facsimile: (503) 227-6840 Email: [email protected] Attorneys for Defendants Kevin Looper and Mark Wiener Trial Attorney for Defendants Kevin Looper and Mark Wiener: Steven C. Berman

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