SunGard (Ellucian) Still Suing Cajana and NSCC

With so much buzz in the higher education software market these days it would be easy to forget that SunGard Higher Education still has an active lawsuit against Cajana and one of their Banner customers Northwest State Community College.  The buzz of course is the result of the Datatel+SunGard deal going forward under the brand Ellucian and the news of Blackboard acquiring two open source hosting providers.

With so much buzz and what I see as related issues and concerns I am going to try and compartmentalize my thoughts and just provide a bit of an update on the SunGard-Cajana lawsuit. I suppose the first order of business is to start using Ellucian.

Background of the Case

Last year Cajana won a competitive RFP by Northwest State Community College to provide managed hosting and application services for Banner beating out SunGard Higher Education and others. As Cajana and NSCC moved forward SunGard filed suit in the Ohio Southern District Court on February 18, 2011 (Case Link) alleging copyright infringement among other things.

Vicki Tambelli did great job summarizing the case in her edu1world post Cajana Responds Alleging SunGard Higher Education has Unclean Hands as well as responding to member comments.

Status of the Lawsuit

SunGard amended their complaint in November 2011 adding NSCC as a defendant by naming DR. Thomas Stuckey in his official capacity as President, Northwest State Community College and Matthew Osborn in his official capacity as Executive Director of Information Technology which I am sure didn’t feel good.

Cajana filed their answer to the amended complaint in December 2011. Since then a date has been set for a jury trial for November 5, 2012 and the parties have been completing the discovery process and taking depositions.

But there have also been two extensions granted to the deadline to allow for a resolution between NSCC and SunGard. The Court granted the current extension which runs through April 2, 2012 because it appeared SunGard and NSCC may be close to reaching a negotiated settlement.

Then yesterday SunGard Higher Education withdrew its earlier motion to extend the deadlines for completing their discovery and depositions.

The most salient point to make in the status is that Cajana and NSCC ended their arrangement long ago with NSCC finding an alternative solution to its needs with the University of Toledo which interestingly did not draw an additional lawsuit.

Hopes and Impressions

Since my wife tells me I need to work at sharing my more optimistic side let me start with my hopes. I hope that the parties are able to reach a settlement to the issues and avoid a protracted and costly legal battle. I hope that the Datatel leadership at Ellucian can find a way to address the likely lingering concerns of customers.

Mostly I hope John Speer, President and CEO, Ellucian delivers on the Ellucian brand:

“The Ellucian brand represents innovative solutions developed in collaboration with a global education community. It stands for providing solutions and sound, strategic guidance to help institutions navigate change, achieve greater transparency and drive efficiencies.”

My impressions from talking to people close to the case and reviewing the court records are not so optimistic. It simply seems like SunGard, now Ellucian, is using the courts to ensure customers do not have low cost alternatives for managed hosting or application management services of Banner.

As I consider my impressions in a more rudimentary form I am reminded of a few values my mother tried to instill in me: Just because you can do it doesn’t mean you should. And, nobody likes a bully.

I should clarify that by saying it seems Ellucian doesn’t want its customers to have access to low cost ‘commercial’ options. That clarification is important given SunGard hasn’t brought similar suits against any other Banner customers since applying for their copyrights.

Similarly I am not aware of Ellucian exerting their IP rights even though there seems to be several customers participating in consortia, hosting arrangements or shared service models or any cloud service providers which ordinarily include access capabilities challenged in the Cajana-NSCC case.

I also have an impression Ellucian may be ready to hunker down and see this through to the end. That is as much a function of the SunGard attorney setting up private practice as it is based on the volume of demands some believe is intended to simply drive up legal costs.

My impressions are also a result of wondering why after NSCC and Cajana ended the arrangement does the case continue. My conclusion is this may now just be about taking Cajana and NSCC to the woodshed and making an example of them.

What’s Next

For the case I suppose it will be to see if a settlement is reached before the April 2nd deadline or an additional extension requested. We’ll have to see if Ellucian settles with both Cajana and NSCC or only one of them.

For me, I am inclined to highlight a few key excerpts in the amended complaint to better illustrate issues other Banner customers and consortia might be exposed to if SunGard (Ellucian) decides to continue suing customers and their other vendors.

I also want to tie this in to the larger context of the effects of vendor consolidation and the efforts by vendors to position themselves in the open source and community source movements.

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The Higher Ed CIO


Comments

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Vicki Tambellini @VickiTambellini |March 29 2012, 03:16 PM|
Jerry,

Thank you for your post.

The issues are complicated. On one hand, I completely agree that it would be great if Banner customers had the option to host with third parties. On the other hand, the standard license agreement is highly restrictive in this regard.

When anyone enters into a business contract, I think it should be with the firm intention of honoring every aspect of the agreement. It may very well be that honoring the agreement is inconvenient once signed. In this case, an amendment is the best course.

I particularly agree with your comments that, "just because you can do it doesn't mean you should. And, nobody likes a bully". I know that you meant that just because Ellucian can sue, it doesn't mean they should. And, I realize that filing a lawsuit against a customer must have been a difficult decision. SunGard must have felt that the risk of loss of future revenue was much greater by allowing 3rd parties to host than to risk negative market perceptions related to the lawsuit. SunGard must also want to send a strong message that IP violations cannot be tolerated.

In the case of IP and copyright violations, The Tambellini Group has been bullied many times by large corporations. In November, one executive told me to go ahead and file a lawsuit when I notified him that his company was in receipt of stolen, copyrighted data. Recently, I made the decision to put an end to the bullying. I've hired an expert law firm that litigates copyright violations in federal court. I've started notifying very large corporations that I will be filing lawsuits for over-use and violating license agreements.

So, while I do not like lawsuits or suing customers, there are times when it simply must be done. I'd like to think that whatever the outcome of this particular situtaion with Ellucian, the people involved are doing their best to do what is right and fair.

Vicki Tambellini
President and CEO
The Tambellini Group and Enterprise Hive
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Jerry Bishop @JerryBishop |March 29 2012, 05:06 PM|
It is complicated. As I write this I am finishing a detail from Ellucian's amended complaint that might be more enlightening for most customers.

Like you I value intellectual property rights and myself hold protections on various creative works, patents and trade secrets. I totally respect Ellucian's right to seek remedy as well as their right to protect their property interests. There are several overt acts alleged in the amended complaint that if true are inexcusable which should carry some sort of penalties.

What stands out for me and should be worrisoem to some Ellucian customers is the 'do as I say, not as I do' aspects of this case and the selectivity of enforcement.
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Vicki Tambellini @VickiTambellini |March 29 2012, 05:19 PM|

Thanks for the update. I look forward to reading the update from the amended complaint.

 

 

Vicki T. Tambellini

President and  CEO

The Tambellini Group and Enterprise Hive

P.O. Box 685, Irvington, Virginia 22480

(804)438-9393

 

 

 

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