How did we get here.
I sympathise with predicament that TMAX find themselves in, but my view is that the situation could have been avoided despite, Oracle and VMWare licensing complexity.
I agree with Martin Thompson that licensing rules need to be clear, consistent & fair, but you only have to type "Licensing Oracle on VMware" into Google to get a feel for complexity and can soon arrive at the underlying principle that Oracle require all physical processors in the VMWare cluster to be licensed as if it was one physical environment.
Oracle will generally recognise hardware partitioning if it cannot be reconfigured on the fly or using software "switches", because cheeky customers would raise the processor count for production and lower it if audited.
The licensing rules for Oracle Database and virtualisation have been static for over ten years, so they can hardly be described as volatile. Agreed, there are complexities, but no more than most other protagonists in enterprise level IT.
The other thing to bear in mind is that the VMware Cluster complete with hardware, Oracle and any other ancillaries did not fall out of the sky into TMAXs datacentre. Many actors would have been involved in the various decisions and processes in the procurement cycle, such as technical architects, resellers, DBAs, managers and procurement officers, any of whom could and should have checked the eventual licensing position.
I also don't buy into the argument that they somehow lure you into over-deploying licences. Oracle allows it's customers to deploy their software without technical encumbrance, such as licence keys, so that IT service providers, including internal IT departments, can be agile, responsive and flexible as long as you declare what you are using and pay for it.
I have worked closely with Oracle since 1994 and I have seen some inconsistencies in their interpretation of their own licensing rules, especially by Account Managers. e.g. "You can licence a non-production database at Standard Edition" (even if you have enterprise options installed), which immediately books you in for a licence breach when or if you are next audited.
However, for existing and prospective Oracle users, I would always recommend contacting other Oracle users via the UKOUG for licensing advice. Feel free to comment or contact me via Linked In if you feel I am being unfair or you need advice yourself.