`Case 5:18-md-02834—BLF Document 561-5 Filed 11/01/19 Page 1 of 4
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`EXHIBIT 5
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`EXHIBIT 5
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`Case 5:18-md-02834-BLF Document 561-5 Filed 11/01/19 Page 2 of 4
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`From: Michael Sherman <masherman@stubbsalderton.com>
`Date: September 27, 2019 at 7:38:02 AM PDT
`To: David Hadden <DHadden@fenwick.com>
`Cc: Wesley Monroe <wmonroe@stubbsalderton.com>, Sandy Seth
`<sseth@stubbsalderton.com>, "Stanley H. Thompson Jr."
`<sthompson@stubbsalderton.com>, Jeffrey Gersh <jgersh@stubbsalderton.com>,
`Viviana Boero Hedrick <vhedrick@stubbsalderton.com>, Saina Shamilov
`<sshamilov@fenwick.com>, Todd Gregorian <TGregorian@fenwick.com>
`Subject: RE: Amazon DJ Action
`
`Dave
`
`What you are saying is nonsensical. Agreeing to a stipulation is always more cost
`effective than summary judgment motion practice. If you are serious, then provide an
`alternative form of stipulation that you and I most recently referred to as a non-
`opposition (to a not-yet filed motion where we are not mind readers and don’t know
`what’s up your sleeve), as the only area of dispute that we are aware of is the
`consequence of the Court’s claim construction order – which was covered by our
`proposed form of stipulation.
`Regards
`Michael
`
`
`From: Michael Sherman
`Sent: Thursday, September 26, 2019 6:03 PM
`To: David Hadden <DHadden@fenwick.com>
`Cc: Wesley Monroe <wmonroe@stubbsalderton.com>; Sandy Seth
`<sseth@stubbsalderton.com>; Stanley H. Thompson Jr.
`<sthompson@stubbsalderton.com>; Jeffrey Gersh <jgersh@stubbsalderton.com>;
`Viviana Boero Hedrick <vhedrick@stubbsalderton.com>; Saina Shamilov
`<sshamilov@fenwick.com>; Todd Gregorian <TGregorian@fenwick.com>
`Subject: RE: Amazon DJ Action
`
`Dave
`
`What is the functional difference between what might be a non-opposed motion for
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`
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`Case 5:18-md-02834-BLF Document 561-5 Filed 11/01/19 Page 3 of 4
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`summary judgment versus a stipulation of non-infringement? Your response suggests
`that there are other legal issues outstanding as you “wait for the court to enter
`summary judgment,” and we don’t see what you are talking about. And if you do see
`these other issues, then why are you not asking us to include those as part of the draft
`stipulation – minimally for our consideration?
`
`In short, your response doesn’t make sense and the motivation is lacking; rather your
`response appears designed to needlessly increase attorneys’ fees.
`
`Finally, I did realize an oversight in my Monday e-mail and the enclosure. We should
`have included claim 69 of the ‘310 patent, as that was not covered in our expert report
`either. That goes to my point of our stipulation that was sent to you having been a
`draft stipulation, and potentially deserving of some tweaks and edits.
`
`Regards
`Michael
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`
`
`From: David Hadden <DHadden@fenwick.com>
`Sent: Thursday, September 26, 2019 9:54 AM
`To: Michael Sherman <masherman@stubbsalderton.com>
`Cc: Wesley Monroe <wmonroe@stubbsalderton.com>; Sandy Seth
`<sseth@stubbsalderton.com>; Stanley H. Thompson Jr.
`<sthompson@stubbsalderton.com>; Jeffrey Gersh <jgersh@stubbsalderton.com>;
`Viviana Boero Hedrick <vhedrick@stubbsalderton.com>; Saina Shamilov
`<sshamilov@fenwick.com>; Todd Gregorian <TGregorian@fenwick.com>; David
`Hadden <DHadden@fenwick.com>
`Subject: RE: Amazon DJ Action
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`Michael,
`Amazon is not interested in entering this stipulation. We will wait for the court to
`enter summary judgment.
`Take care
`Dave
`
`From: Michael Sherman [mailto:masherman@stubbsalderton.com]
`Sent: Monday, September 23, 2019 10:15 AM
`To: David Hadden <DHadden@fenwick.com>
`Cc: Wesley Monroe <wmonroe@stubbsalderton.com>; Sandy Seth
`<sseth@stubbsalderton.com>; Stanley H. Thompson Jr.
`<sthompson@stubbsalderton.com>; Jeffrey Gersh <jgersh@stubbsalderton.com>;
`Viviana Boero Hedrick <vhedrick@stubbsalderton.com>; Saina Shamilov
`<sshamilov@fenwick.com>; Todd Gregorian <TGregorian@fenwick.com>
`Subject: Amazon DJ Action
`
`
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`Case 5:18-md-02834-BLF Document 561-5 Filed 11/01/19 Page 4 of 4
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`Dear Dave:
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`In my letter to you dated August 19 I proposed stipulating to judgment of non-
`infringement on the Amazon DJ action and to judgment of non-infringement as
`respects that ‘544 patent claims asserted against Twitch and all other website
`operators that are part of the MDL. In a call we had shortly after that letter, I
`reiterated our willingness and inquired about our working together to get some form of
`stipulation on file to accomplish same; you indicated you would raise with Amazon and
`get back to me.
`
` I
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` have not heard back from you on that issue, and to move the ball forward send to you
`a draft stipulation that accounts for the Amazon DJ action (it is attached). Please
`review and get back to me, and let’s see if we can get this taken care of ASAP. In a
`manner of speaking, I do believe we both “owe” this to the Court, so that the Court
`needn’t concern itself with the pending motion for judgement on the pleadings
`directed to CloudFront, set for hearing on October 3. I’m sure the Court will soon be
`working this up, and it seems as though the sooner we can get this or a comparable
`stipulation to the Court, the better, so as to save the Court the need for work-up on the
`motion for judgment issues.
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`As for the Twitch/’544 issues, on further reflection I presume you’d agree that there’s
`no procedural mechanism that would now apply to a partial judgment on just that
`issue. You are certainly aware that we’ve not submitted an expert report on
`infringement as respects the ‘544 patent. Are you interested in the preparation of
`some joint stipulation to the Court, covering this issue?
`
`Regards
`Michael
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