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`Case 5:18-md-02834-BLF Document 310 Filed 11/09/18 Page 1 of 2
`
`Michael A. Sherman (SBN 94783)
`masherman@stubbsalderton.com
`Jeffrey F. Gersh (SBN 87124)
`jgersh@stubbsalderton.com
`Sandeep Seth (SBN 195914)
`sseth@stubbsalderton.com
`Wesley W. Monroe (SBN 149211)
`wmonroe@stubbsalderton.com
`Stanley H. Thompson, Jr. (SBN 198825)
`sthompson@stubbsalderton.com
`Viviana Boero Hedrick (SBN 239359)
`vhedrick@stubbsalderton.com
`STUBBS, ALDERTON & MARKILES, LLP
`15260 Ventura Blvd., 20th Floor
`Sherman Oaks, CA 91403
`Telephone:
`(818) 444-4500
`Facsimile:
`(818) 444-4520
`
`Attorneys for PERSONALWEB
`TECHNOLOGIES, LLC and
`LEVEL 3 COMMUNICATIONS, LLC
`
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN JOSE DIVISION
`
`IN RE PERSONAL WEB TECHNOLOGIES,
`LLC, ET., AL., PATENT LITIGATION
`
`
`
`
`
`
`
`CASE NO.: 5:18-md-02834-BLF
`
`PERSONALWEB TECHNOLOGIES, LLC
`& LEVEL 3 COMMUNICATIONS, LLC’S
`STATEMENT OF DISAGREEMENT
`RE: DESIGNATION OF A
`REPRESENTATIVE WEBSITE
`OPERATOR CASE
`
`
`
`
`PWEB & LEVEL 3’S STATEMENT
`OF DISAGREEMENT RE: DESIGNATION
`OF A REPRESENTATIVE
`
`
`
`
`
`CASE NO: 5:18-md-02834-BLF
`
`
`
`
`
`Case 5:18-md-02834-BLF Document 310 Filed 11/09/18 Page 2 of 2
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`Not discussed at last week’s CMC is that Twitch is a wholly-owned subsidiary of Amazon and
`
`is likely fully indemnified by Amazon. Utilizing Centaur (a UK-domiciled company with the
`
`transferor court being the Southern District of New York) as an alternative presents challenges of
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`distance and place of trial.
`
`Presumably the Court (1) remains interested in whether a loss by Amazon would “bind all
`
`the other defendants;” (2) would be interested in a direct answer to the Court’s inquiry on that issue;
`
`and, (3) remains mindful of Amazon’s representation on November 2 that “Amazon is indemnifying
`
`all of the customer defendants” (see generally, TR of 11/2/18 hearing p. 7). Said representation by
`
`counsel differs from Amazon discovery responses served the night before the recent CMC--that
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`Amazon is presently only indemnifying 61 website operators, not all website operators. In
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`discussions this week Amazon refused to clarify or harmonize “all” versus “61”.
`
`Reasons for a test case or cases include ensuring that all of PersonalWeb’s infringement
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`theories are litigated, and also that those website operators not directly participating believe that
`
`interests of the widest spectrum of all website operator defendants are represented, and to the extent
`
`feasible, their interests fully aligned and advocated (the Court’s observation on April 27 about the
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`benefits of even “a fairly middling mediator …” is on point). A website operator that is not fully
`
`indemnified by Amazon for all potential categories of infringement (categories 1, 2 and 4) may find
`
`itself in a position where Amazon protects its own interests over that website operator. It bears
`
`emphasis that the parties agree that the case against Twitch should proceed, regardless. (Dkt 303.)
`
`For all these reasons, in addition to Twitch, website operator Kongregate, Inc. (filed originally
`
`in the Northern District of California, 5:18-cv-04625-BLF) and alleged to be infringing in categories
`
`1, 2 and 4 (not identified in discovery by Amazon as indemnified, along with at least 20 others), should
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`be added as one additional test case. While Kongregate is lacking a category 3 presence, the working
`
`assumption remains that minimally Amazon is most incentivized to vigorously defend that category.
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`Dated: November 9, 2018
`
`STUBBS, ALDERTON & MARKILES, LLP
`
`
`
`PWEB & LEVEL 3’S STATEMENT
`OF DISAGREEMENT RE: DESIGNATION
`OF A REPRESENTATIVE
`
`
`By: /s/ Michael A. Sherman
`Michael A. Sherman
`
`
`
`1
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`
`
`CASE NO: 5:18-md-02834-BLF
`
`
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