Case 5:18-md-02834-BLF Document 594-3 Filed 04/10/20 Page 1 of 6
`Case 5:18-md-02834—BLF Document 594-3 Filed 04/10/20 Page 1 of 6
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`EXHIBIT 2
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`EXHIBIT 2
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`Case 5:18-md-02834-BLF Document 594-3 Filed 04/10/20 Page 2 of 6
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`From:
`To:
`Cc:
`Subject:
`Date:
`Attachments:
`
`Todd Gregorian
`Jeffrey Gersh
`Michael Sherman; David Hadden; Viviana Boero Hedrick
`RE: Conference call
`Friday, April 3, 2020 3:18:00 PM
`ndca-5-13-cv-01358-95.pdf
`
`Jeffrey,
`
`Our position is that the motion is frivolous, particularly given Judge Davila’s rejection of the same
`request two days ago. Could you please explain the “ex parte” procedure you intend to use and
`direct us to the statute or rule that authorizes it? (See Civ. L.R. 7-10.)
`
`Thanks,
`
`TODD GREGORIAN
`Partner | Fenwick & West LLP | +1 415-875-2402 | tgregorian@fenwick.com
`Admitted to practice in California.
`
`
`
`
`From: Jeffrey Gersh [mailto:jgersh@stubbsalderton.com]
`Sent: Friday, April 3, 2020 2:57 PM
`To: Todd Gregorian <TGregorian@fenwick.com>
`Cc: Michael Sherman <masherman@stubbsalderton.com>; David Hadden
`<DHadden@fenwick.com>; Viviana Boero Hedrick <vhedrick@stubbsalderton.com>
`Subject: Re: Conference call
`
`** EXTERNAL EMAIL **
`
`Todd - i just called your office number because that is the only number i have for you re the motion
`we intend to file to either stay the Motion for Attorneys’s Fees or to Deny it without prejudice until
`such time as the court of appeal rules on the appeals. This is the same thing I tried to address with
`you the other day and which you responded by email saying you would not agree to this request. I
`would appreciate hearing from you promptly as we do intend to file this today. Thank you.
`
`JG
`
`J. Gersh
`Stubbs Alderton &
`Markiles LLP
`15260 Ventura Blvd.
`20th Floor
`Sherman Oaks, CA 91403
`818.444.9222 (O)
`310.780.9898 (C)
`
`

`

`Case 5:18-md-02834-BLF Document 594-3 Filed 04/10/20 Page 3 of 6
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`From: Todd Gregorian <TGregorian@fenwick.com>
`Sent: Tuesday, March 31, 2020 6:58:33 PM
`To: Jeffrey Gersh <jgersh@stubbsalderton.com>
`Cc: Michael Sherman <masherman@stubbsalderton.com>; David Hadden <DHadden@fenwick.com>
`Subject: RE: Conference call
`
`[EXTERNAL EMAIL] This email is from an external sender, and not from Stubbs Alderton &
`Markiles.
`Do not click on links or attachments unless you are sure of the sender.
`
`Jeffrey,
`
` I
`
` apologize that I have been unavailable today—I have a summary judgment briefing deadline in
`another matter that has consumed my attention. But here is Amazon’s position:
`
`The rules provide for attorney fees to be requested and determined shortly after entry of judgment.
`They do so for good reasons. It is important to get a ruling while the district court has the case fresh
`in mind and not years later, and the rules seek to have fees appeals resolved contemporaneously with
`the merits. See Spitz Technologies Corp. v. Nobel Biocare USA LLC, No. SACV 17-00660 JVS
`(JCGx), 2018 WL 6016149 (C.D. Cal. Aug. 13, 2018) (“[J]udicial economy is better served by
`determining attorneys' fees promptly while the details of the proceedings are still fresh and when the
`Federal Circuit has the opportunity to consider any appeal of the calculation at the same time as the
`appeal on the merits.”); Masalosalo by Masalosalo v. Stonewall Ins. Co., 718 F.2d 955, 957 (9th Cir.
`1983) (district courts “retains[] the power to award attorneys' fees after the notice of appeal from the
`decision on the merits had been filed . . . . [which] will prevent postponement of fee consideration
`until after the circuit court mandate, when the relevant circumstances will no longer be fresh in the
`mind of the district judge.”); see also Ng. v. US Bank, NA, No. 15-cv-04998-KAW, 2016 WL
`6995884 (N.D. Cal. Nov. 30, 2016) (same); Fed. R. Civ. P. 54, advisory committee's note (1993
`amendments) (“Prompt filing affords an opportunity for the court to resolve fee disputes shortly after
`trial, while the services performed are freshly in mind. It also enables the court in appropriate
`circumstances to make its ruling on a fee request in time for any appellate review of a dispute over
`fees to proceed at the same time as review on the merits of the case.”).
`
`We understand circumstances are changing rapidly due to the pandemic. We are open to handling
`the motion, particularly the hearing, in a way the Court deems appropriate. But a request to defer
`resolution until after an appeal that was just noticed is finally determined—a delay of 18 months to 2
`years or potentially more—is not a request that has anything to do with the COVID-19 pandemic.
`
`The parties agreed on a briefing schedule that we modified once already in light of the COVID-19
`situation. PersonalWeb could have raised its request at that time. Instead, it allowed Amazon and
`Twitch to proceed with filing and get our brief in hand. PersonalWeb’s briefing deadline is also
`currently weeks away. That said, your point about these being difficult times is well taken. If you
`face business interruptions or other hardships due to COVID-19, we will certainly work with you on
`appropriate adjustments to the schedule.
`
`If you would still like a call my schedule is more or less open tomorrow. I hope you and yours
`remain healthy and safe.
`
`TODD GREGORIAN
`Partner | Fenwick & West LLP | +1 415-875-2402 | tgregorian@fenwick.com
`Admitted to practice in California.
`
`

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`Case 5:18-md-02834-BLF Document 594-3 Filed 04/10/20 Page 4 of 6
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`
`
`From: Jeffrey Gersh [mailto:jgersh@stubbsalderton.com]
`Sent: Tuesday, March 31, 2020 4:11 PM
`To: Todd Gregorian <TGregorian@fenwick.com>
`Cc: Michael Sherman <masherman@stubbsalderton.com>
`Subject: Re: Conference call
`
`** EXTERNAL EMAIL **
`
`Todd
`While Michael and i were hoping to have a call with you today, for some reason you are not
`responding to my telephone messages or for that matter my email sent earlier today. Needless to
`say what we want to talk about is time sensitive and will only take a few minutes of your time. To
`preview our discussion it has to do with the timing of the hearing on the motion for attorney’s fees,
`our response, your reply, and the pending appeals. We believe that it would be prudent to stipulate
`to continue the hearing on your client’s motion for attorney’s fees until such time as the appeals
`have been determined since any decision is likely to impact the court’s decision on the motion for
`attorney’s fees. We believe that this practical approach makes imminent sense and promotes
`efficiency for everyone, especially the court. We would like your cooperation rather than having to
`seek the court’s assistance. Given these terrible times we are all facing the last thing the court
`needs is to deal with this motion when much more pressing matters are likely pending and have to
`be dealt with. We request that you let us know today when we can get on a call to meet and confer
`regarding this situation.
`
`Thank you and i look forward to hearing from you.
`
`JG
`
`J. Gersh
`Stubbs Alderton &
`Markiles LLP
`15260 Ventura Blvd.
`20th Floor
`Sherman Oaks, CA 91403
`818.444.9222 (O)
`310.780.9898 (C)
`
`From: Jeffrey Gersh
`Sent: Tuesday, March 31, 2020 11:04:11 AM
`To: Todd Gregorian <TGregorian@fenwick.com>
`Cc: Michael Sherman <masherman@stubbsalderton.com>
`Subject: RE: Conference call
`
`Todd
`
`

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`Case 5:18-md-02834-BLF Document 594-3 Filed 04/10/20 Page 5 of 6
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`
`Please let me know when we can set up the call today, hopefully before noon. I
`left you a voice mail also with my cell number which is on my signature block
`below. Thank you for your attention.
`
`JG
`
`Jeffrey F. Gersh, Esq.
`Partner
`Stubbs Alderton & Markiles, LLP
`15260 Ventura Blvd
`20th Floor
`Sherman Oaks, CA 91403
`(818) 444-9222 (direct & fax)
`(310) 780-9898 (cell)
`
`From: Jeffrey Gersh
`Sent: Monday, March 30, 2020 7:50 PM
`To: Todd Gregorian <TGregorian@fenwick.com>
`Subject: Re: Conference call
`
`Thanks. What’s a good time. Discuss the motions. Should be 10 min. Where should I call you?
`
`J. Gersh
`Stubbs Alderton &
`Markiles LLP
`15260 Ventura Blvd.
`20th Floor
`Sherman Oaks, CA 91403
`818.444.9222 (O)
`310.780.9898 (C)
`
`
`On Mar 30, 2020, at 6:45 PM, Todd Gregorian <TGregorian@fenwick.com> wrote:
`
`[
`
`EXTERNAL EMAIL] This email is from an external sender, and not from Stubbs
`Alderton & Markiles.
`Do not click on links or attachments unless you are sure of the sender.
`
`Not a problem. What’s our agenda?
`
`Best,
`
`

`

`Case 5:18-md-02834-BLF Document 594-3 Filed 04/10/20 Page 6 of 6
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`-t
`
`From: Jeffrey Gersh [mailto:jgersh@stubbsalderton.com]
`Sent: Monday, March 30, 2020 5:53 PM
`To: Todd Gregorian <TGregorian@fenwick.com>
`Subject: Conference call
`
`** EXTERNAL EMAIL **
`
`Todd - Michael Sherman and i would like to get on a short call with you. If you have
`time let me know and i will set up a quick conference call. Thank you.
`
`JG
`
`J. Gersh
`Stubbs Alderton &
`Markiles LLP
`15260 Ventura Blvd.
`20th Floor
`Sherman Oaks, CA 91403
`818.444.9222 (O)
`310.780.9898 (C)
`
`-------------------------------------------
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