Legal battle —
Broadcom defends against renewal, citing "End of Availability" provision.
Broadcom is accusing AT&T of trying to "rewind the clock and force" Broadcom "to sell support services for perpetual software licenses... that VMware has discontinued from its product line and to which AT&T has no contractual right to purchase.” The statement comes from legal documents Broadcom filed in response to AT&T's lawsuit against Broadcom for refusing to renew support for its VMware perpetual licenses [PDF].
On August 29, AT&T filed a lawsuit [PDF] against Broadcom, alleging that Broadcom is breaking a contract by refusing to provide a one-year renewal for support for perpetually licensed VMware software. Broadcom famously ended perpetual VMware license sales shortly after closing its acquisition in favor of a subscription model featuring about two bundles of products rather than many SKUs.
AT&T claims its VMware contract (forged before Broadcom's acquisition closed in November) entitles it to three one-year renewals of perpetual license support, and it's currently trying to enact the second one. AT&T says it uses VMware products to run 75,000 virtual machines (VMs) across about 8,600 servers. The VMs are for supporting customer services operations and operations management efficiency, per AT&T. AT&T is asking the Supreme Court of the State of New York to stop Broadcom from ending VMware support services for AT&T and for "further relief" as deemed necessary.
On September 20, Broadcom filed for AT&T's motion to be denied. Its defense includes its previously taken stance that VMware was moving toward a subscription model before Broadcom bought it. The transition from perpetual licenses to subscriptions was years in the making and, thus, something for which AT&T should have prepared, according to Broadcom. Broadcom claims that AT&T has admitted that it intends to migrate away from VMware software and that AT&T could have spent "the last several months or even years" doing so.
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.
Broadcom has rubbed some customers the wrong way
Broadcom closed its VMware acquisition in November and quickly made dramatic changes. In addition to Broadcom's reputation for overhauling companies after buying them, moves like ending perpetual licenses, taking VMware's biggest customers directly instead of using channel partners, and raising costs by bundling products and issuing higher CPU core requirements have led customers and partners to reconsider working with the company. Migrating from VMware can be extremely challenging and expensive due to its deep integration into some IT environments, but many are investigating migration, and some expect Broadcom to face years of backlash.
As NAND Research founder and analyst Steve McDowell told TechTarget about this case:
It's very unusual for customers to sue their vendors. I think Broadcom grossly underestimated how passionate the customer base is, [but] it's a captive audience.
As this lawsuit demonstrates, Broadcom's VMware has brought serious customer concerns around ongoing support. Companies like Spinnaker Support are trying to capitalize by offering third-party support services.
Martin Biggs, VP and managing director of EMEA and strategic initiatives at Spinnaker, told Ars Technica that his company provides support so customers can spend time determining their next move, whether that's buying into a VMware subscription or moving on:
VMware customers are looking for options; the vast majority that we have spoken to don’t have a clear view yet of where they want to go, but in all cases the option of staying with VMware for the significantly increased fees is simply untenable. The challenge many have is that not paying fees means not getting support or security on their existing investment.
VMware's support for AT&T was supposed to end on September 8, but the two companies entered an agreement to continue support until October 9. A hearing on a preliminary injunction is scheduled for October 15.