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The filing argues: “AT&T resorts to sensationalism by accusing Broadcom of using ‘bullying tactics’ and ‘price gouging.’ Such attacks are intended to generate press and distract the Court from a much simpler story.”
Broadcom claims the simple story is that:
… the agreement contains an unambiguous “End of Availability” provision, which gives VMware the right to retire products and services at any time upon notice. What’s more, a year ago, AT&T opted not to purchase the very Support Services it now asks the Court to force VMware to provide. AT&T did so despite knowing Defendants were implementing a long planned and well-known business model transition and would soon no longer be selling the Support Services in question.
Broadcom says it has been negotiating with AT&T “for months” about a new contract, but the plaintiff “rejected every proposal despite favorable pricing.”
Broadcom’s filing also questions AT&T’s request for mandatory injunction, claiming that New York only grants those in “rare circumstances,” which allegedly don’t apply here.
AT&T has options, Broadcom says
AT&T’s lawsuit claims losing VMware support will cause extreme harm to itself and beyond. The lawsuit says that 22,000 of AT&T’s VMware VMs are used for support “of services to millions of police officers, firefighters, paramedics, emergency workers, and incident response team members nationwide… for use in connection with matters of public safety and/or national security.” It also claimed that communications for the Office of the President are at risk without VMware’s continued support.
However, Broadcom claims that AT&T has other choices, saying:
AT&T does have other options and, therefore, the most it can obtain is monetary damages. The fact that AT&T has been given more than eight-months’ notice and has in the meantime failed to take any measures to prevent its purported harm (e.g., buy a subscription for the new offerings or move to another solution) is telling and precludes any finding of irreparable harm. Even if AT&T thinks it deserves better pricing, it could have avoided its purported irreparable harm by entering in a subscription based deal and suing for monetary damages instead of injunctive relief.
AT&T previously declined to answer Ars Technica’s questions about its backup plans for supporting such important customers should it lose VMware support.
