CIRCUIT COURT ‘THIRD JUDICIAL DISTRICT April 28, 2016 Pilar French Lisa Kaner Lane Powell PC Markowitz Herbold PC 601 SW 2nd Ave Ste 2100 1211 SW Sth Ave Ste 3000 Portland, OR 97204 Portland, OR 97204 Re: Oracle America, Ine. v. State of Oregon, etal. Marion County Case No. 16CV01760 Dear Counsel ‘This matter came before the Court on April 14, 2016 for oral argument on: + Defendants’ Motion to Dismiss Pursuant to ORCP 21A(8), ORCP 21(3), and ORCP 21A(7); ‘© Defendants’ Motion to Stay Discovery Pursuant to ORCP 36C(), ORCP 36C(2), and ORCP 1B; and ‘© Plaintiff's Motion to Strike Declaration of Harry Wilson in Support of Defendant's Motion to Stay Discovery. ‘The Court rules as follows: 1, Motion to Dismiss under ORCP 21A(8}—DENIED. Defendant asserts that the Governor lacked the authority to settle the related cases between it and plaintiff because the Oregon False Claims Act provides “the Attorney General may bring a civil action in the name of the State of Oregon” under ORS 180.760(1), and because ORICO claims under ORS 166.725 may be brought by the Attorney General. Defendant alleges that these claims “belonged” exclusively to the ‘Attorney General to pursue or settle, Neither ORS 180.760(1) nor ORS 166.725 state that only the Attorney General may settle cases. ‘The ORICO statutes do not even grant exclusive authority to the Attorney General to initiate those actions; ORICO claims under ORS 166.725 may be brought by “any district attomey or any state agency having jurisdiction,” as well as “any aggrieved person.” ORS 166.725(5),(6). In the absence of a specific statutory deprivation of the authority conferred upon the Governor under Article V § 10 of the Oregon Constitution to “take care that the laws be faithfully executed,” the Court cannot conclude that the Governor lacked authority to settle the Oracle claims. As to the assertion that the claim for specific performance is too vague to be enforced or that it lacks Foisaavts)material terms, the facts asserted in the Complaint, taken as true, are sufficient to state a claim, ‘The Complaint does appear facially insufficient in two particulars—it does not assert a basis for overcoming defendant's assertion of sovereign immunity, and it does not state any basis by which plaintiff had the authority to waive the right of the five individuals and Mythic to collect prevailing party fees or costs should they prevail in Rosenblum v. Oracle, Marion County Case No. 14C20043 (“Rosenblum”). Complaint § 16a. Dismissal on either ground would not serve the interests of judicial economy. Instead, the Court requires, on its own motion under ORCP 21D, that plaintiff amend its Complaint within 45 days of the date of this, letter to be more definite and certain as to (1) the basis for a waiver of sovereign immunity and (2) plaintiff's authority to waive the individual defendants’ and Mythics’ right to costs and fees in Rosenblum, 2. Motion to Dismiss under ORCP 21A@)—DENIED. Defendant asserts that the Court should dismiss plaintif’s case because the other pending actions, including Rosenblum, before Judge Geyer, are for the same cause, A judgment in Rosenblum would not resolve the issue of whether the Court should order specific performance of the alleged settlement agreement in this case, These are related claims, but they are not identical 3. Motion to Dismiss under ORCP 21A(7)—DENIED. The five individuals and Mythic would be beneficiaries of the settlement agreement. They would also have their rights to fees and costs foreclosed if this Court orders specific performance. The Complaint does not assert any basis by which plaintiff had the authority to resolve claims on behalf of those defendants, so itis appropriate to join them as necessary parties under ORCP 29A. 4, Motion to Stay Discovery—DENIED. Defendant and plaintiff request that the Court order that discovery be stayed or accelerated, respectively. Discovery shall continue in the ordinary course. 5, Motion to Strike Declaration of Harry Wilson—DENIED. ‘The Court considered the Declaration of Harry Wilson in deciding the ORCP 21A(3) and ORCP 21A(7) motions. ‘The declaration establishes that plaintiff’s counsel will continue to litigate the related matters until those matters either settle or proceed through trial. EC Amstrong Cireuit Court Judge SEAstme Feanais)