Case 5:18-md-02834-BLF Document 313 Filed 11/27/18 Page 1 of 3
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`IN RE: PERSONALWEB
`TECHNOLOGIES, LLC, ET AL., PATENT
`LITIGATION
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`Case No. 18-md-02834-BLF
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`ORDER RE REPRESENTATIVE
`CUSTOMER CASE
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`Currently before the Court are statements from PersonalWeb Technologies, LLC and Level
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`3 Communications, LLC (collectively, “PersonalWeb”) and Amazon.com, Inc. and Amazon Web
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`Services, Inc. (collectively, “Amazon”) regarding designation of representative cases. ECF Nos.
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`303, 309, 310. As discussed below, the Court concludes that only the case against Twitch
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`Interactive, Inc. (“Twitch”) should be designated as a representative case.
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`At the first Case Management Conference, held on September 20, 2018, the Court ordered
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`that it would proceed with Amazon v. PersonalWeb, 18-cv-00767-BLF (“Amazon DJ Action”)
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`first. ECF No. 157. The Court initially rejected Plaintiffs’ proposal to designate one “customer
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`case” (any case comprising this MDL other than the Amazon DJ Action) as representative of each
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`of the four categories described by Plaintiffs. The Court stayed the proceedings against
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`defendants in the customer cases. However, at Plaintiffs’ request, the Court agreed that it would
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`reevaluate whether to designate any representative customer cases to proceed along with the
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`Amazon DJ Action at the November 2, 2018 tutorial and Case Management Conference.
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`During the November 2, 2018 Case Management Conference, the Court raised the concern
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`that a verdict against Amazon in the Amazon DJ Action may leave unresolved issues as to the
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`liability of the defendants in the customer cases and thus not produce the efficiencies desired by all
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`Case 5:18-md-02834-BLF Document 313 Filed 11/27/18 Page 2 of 3
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`parties and the Court. ECF No. 300 at 4. The Court suggested designating a representative
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`customer case that involved all four categories of infringement identified by PersonalWeb.
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`Counsel for PersonalWeb and Amazon agreed that a verdict in such a customer case would have
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`the broadest possible application and likely resolve all the potential legal theories. See id. at 6-8.
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`The Court stated that it would consider designating a single representative customer case and
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`identified Centaur Media and Twitch as cases that involved all four categories of infringement
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`identified by PersonalWeb. See id. at 8-10. The Court ordered the parties to submit a joint
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`statement regarding designation of a representative customer case by November 6, 2018. ECF No.
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`306. If the parties did not agree on designation of a single representative customer case, the Court
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`ordered them to file one-page statements with their positions by November 9, 2018. Id.
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`On November 6, 2018, and November 9, 2018, the parties submitted their statements as
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`required by the Court. ECF Nos. 303, 309, 310. The parties agree to designate PersonalWeb’s
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`case against Twitch (No. 18-cv-05619-BLF) for the reasons discussed at the Case Management
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`Conference. Id. In addition, PersonalWeb requests that the Court designate its case against
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`Kongregate, Inc. (“Kongregate”) (No. 18-cv-04625-BLF) as an additional representative customer
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`case because Amazon is not indemnifying Kongregate and thus a wider spectrum of interests
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`would be represented. ECF No. 310. PersonalWeb explains Twitch is a fully-owned subsidiary of
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`Amazon and is likely fully indemnified by Amazon. PersonalWeb argues that Amazon may not
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`adequately represent the interests of any defendant which it does not indemnify, and therefore
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`PersonalWeb argues that the Court should designate its case against Kongregate to ensure the
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`interests of all the customer defendants are represented.
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`Amazon argues that PersonalWeb’s concerns are not valid because, (1) no defendant in a
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`customer case has raised this concern, (2) Kongregate used Amazon S3 during the relevant period
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`and is therefore no different from any other customer defendant, (3) Twitch did not become an
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`Amazon subsidiary until 2014 and even then retained full control of its website and design, and (4)
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`Twitch and Amazon both have a significant interest in defeating all of PersonalWeb’s claims
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`under any theory. ECF No. 309. Kongregate submitted a statement opposing PersonalWeb’s
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`proposal to designate its case as a representative case. ECF No. 307. Kongregate stated that the
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`Case 5:18-md-02834-BLF Document 313 Filed 11/27/18 Page 3 of 3
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`case against Twitch would “fully encompass[]” the claims in the customer cases and that adding
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`Kongregate would “only serve to complicate matters, and waste the Court’s and Kongregate’s
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`resources.” Id.
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`The Court does not find PersonalWeb’s argument persuasive. As agreed to by the parties,
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`Twitch seems to be an ideal exemplar. Twitch involves all four categories of infringement
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`identified by PersonalWeb, whereas Kongregate only involves three categories. PersonalWeb
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`fails to make any persuasive argument as to why Amazon would not be fully incentivized to
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`litigate every potential theory, especially because Amazon is obligated to indemnify most of the
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`customer defendants.
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`For the foregoing reasons, the Court ORDERS that the stay shall be lifted as to Twitch.
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`Twitch shall respond to the pleadings and shall participate in all proceedings. The existing case
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`schedule shall apply to Twitch.
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`IT IS SO ORDERED.
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`Dated: November 27, 2018
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`______________________________________
`BETH LABSON FREEMAN
`United States District Judge
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