Case 5:18-md-02834-BLF Document 659 Filed 04/26/21 Page 1 of 4
`
`
`
`
`
`AMAZON.COM, INC., and AMAZON WEB
`SERVICES, INC.,
`Plaintiffs,
`
`v.
`PERSONALWEB TECHNOLOGIES, LLC and
`LEVEL 3 COMMUNICATIONS, LLC,
`Defendants.
`
`J. DAVID HADDEN (CSB No. 176148)
`dhadden@fenwick.com
`SAINA S. SHAMILOV (CSB No. 215636)
`sshamilov@fenwick.com
`MELANIE L. MAYER (admitted pro hac vice)
`mmayer@fenwick.com
`TODD R. GREGORIAN (CSB No. 236096)
`tgregorian@fenwick.com
`RAVI R. RANGANATH (CSB No. 272981)
`rranganath@fenwick.com
`CHIEH TUNG (CSB No. 318963)
`ctung@fenwick.com
`FENWICK & WEST LLP
`Silicon Valley Center
`801 California Street
`Mountain View, CA 94041
`Telephone:
`650.988.8500
`Facsimile:
`650.938.5200
`
`Counsel for AMAZON.COM, INC.,
`AMAZON WEB SERVICES INC., and
`TWITCH INTERACTIVE, INC.
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
`IN RE: PERSONALWEB TECHNOLOGIES,
`Case No.: 5:18-md-02834-BLF
`LLC ET AL., PATENT LITIGATION,
`
`Case No.: 5:18-cv-00767-BLF
`Case No. 5:18-cv-05619-BLF
`REQUEST FOR CASE MANAGEMENT
`CONFERENCE BY AMAZON.COM,
`INC., AMAZON WEB SERVICES, INC.,
`AND TWITCH INTERACTIVE, INC.
`
`
`
`[REDACTED VERSION OF
`DOCUMENT SOUGHT TO BE
`SEALED]
`
`
`
`PERSONALWEB TECHNOLOGIES, LLC and
`LEVEL 3 COMMUNICATIONS, LLC,
`Plaintiffs,
`
`v.
`
`TWITCH INTERACTIVE, INC.,
`
`Defendant.
`
`
`REQUEST FOR CASE MANAGEMENT
`CONFERENCE
`
`
`
`Case Nos.: 5:18-md-02834-BLF;
`5:18-cv-00767-BLF; 5:18-cv-05619-BLF
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ATTORNEYS AT LAW
`
`FENWICK & WEST LLP
`
`
`
`
`

`

`Case 5:18-md-02834-BLF Document 659 Filed 04/26/21 Page 2 of 4
`
`
`
`INTRODUCTION
`Amazon.com, Inc., Amazon Web Services, Inc., and Twitch Interactive, Inc. (collectively,
`“Amazon”) respectfully request a telephonic conference with the Court to address issues that have
`arisen with respect to securing and/or enforcing the Court’s judgment pending PersonalWeb’s
`appeals. Specifically, Stubbs Alderton & Markiles, LLP remains counsel of record for
`PersonalWeb in this centralized MDL proceeding and in each of its constituent cases, and continues
`to pursue two Federal Circuit appeals (of the Court’s non-infringement summary judgment order
`and of its fee award) and Supreme Court review (of the Court’s Kessler and claim preclusion order).
`Nevertheless, those counsel now claim that service of documents on them in this case is ineffective
`if the documents relate to what they deem “post-judgment enforcement” matters. This represents
`a new and creative low-water mark for debtors seeking to evade a judgment. Amazon has other
`serious concerns about securing the judgment. The information it has obtained to date indicates
`that PersonalWeb is purposefully undercapitalized to avoid ever having to pay a judgment against
`it, while at the same time it pays a prominent and costly member of the Supreme Court bar to pursue
`its appeal. Amazon believes it would be productive to discuss these issues briefly with the Court,
`in the hope that doing so will avoid burdening the Court with needless motion practice.
`BACKGROUND
`On March 2, 2021, the Court awarded Amazon $4,615,242.28 in attorney fees and
`$203,300.10 in non-taxable costs. (Dkt. 648.) That award serves as a judgment without the need
`for the Court or clerk to enter a separate document. Fed. R. Civ. P. 58(a)(3). On March 31, 2021,
`PersonalWeb noticed its appeal of the award. (Dkt. 653.) On April 1, 2021, the automatic 30-day
`stay of enforcement of the judgment expired. Fed. R. Civ. P. 62(a). The Court later granted an
`additional $571,961.71 in attorney fees and $11,120.97 in non-taxable costs in a separate order.
`(Dkt. 656.)
`PersonalWeb has not paid the judgment or posted a supersedeas bond to secure the judgment
`and stay enforcement. See Fed. R. Civ. P. 62. Nearly a month ago, Amazon asked PersonalWeb’s
`counsel whether PersonalWeb would post a bond. (Ex. A. (3/31/21 email string between T.
`Gregorian and J. Gersh).) PersonalWeb’s counsel responded by stating that PersonalWeb “is
`
`REQUEST FOR CASE MANAGEMENT
`CONFERENCE
`
`1
`
`Case Nos.: 5:18-md-02834-BLF;
`5:18-cv-00767-BLF; 5:18-cv-05619-BLF
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ATTORNEYS AT LAW
`
`FENWICK & WEST LLP
`
`
`
`

`

`Case 5:18-md-02834-BLF Document 659 Filed 04/26/21 Page 3 of 4
`
`
`
`considering its options,” and inviting Amazon to follow up with him by the next week. (Id.)
`Amazon did so on April 17, 2021, seeking to meet and confer about securing the judgment, and
`asking whether PersonalWeb has sufficient funds to satisfy the judgment or has other assets to
`secure it. (Id.)
`PersonalWeb did not provide any information in response to this request. PersonalWeb’s
`principal, Kevin Bermeister, resides in
` (Ex. B (8/22/19 Bermeister Dep.) at 10:10-11.)
`During his deposition, Amazon asked Mr. Bermeister whether PersonalWeb would be able to
`satisfy a fee award in this case. Mr. Bermeister attempted to deflect,
`
` but ultimately admitted that he would have to “
`
`.” (Id. at 181:2-182:5.) Mr. Bermeister’s testimony—
`
`—indicates that PersonalWeb is
`not capitalized adequately to cover that liability. Given this testimony and the silence from
`PersonalWeb’s counsel, Amazon became concerned that PersonalWeb intends never to pay the
`Court’s judgment and yet will continue to drive up costs pursuing its multiple appeals.
`Amazon therefore began taking steps to secure the judgment. Under Fed. R. Civ. P.
`69(a)(2), a judgment creditor “may obtain discovery from any person—including the judgment
`debtor—as provided in these rules or by the procedure of the state where the court is located.” In
`California, a judgment creditor is permitted broad discovery into the finances and assets of the
`judgment debtor, including any information that identifies or could lead to the discovery of
`executable assets. See, e.g., Cal. Civ. Proc. Code § 708.110 (with respect to judgment debtor
`examination); see SCC Acquisitions, Inc. v. Super. Ct., 243 Cal. App. 4th 741, 756 (2015) (doubts
`about relevance generally resolved in favor of permitting discovery in judgment debtor
`examination).
`On April 19, 2021, Amazon served interrogatories and requests for production of documents
`under Fed. R. Civ. P. 69 and Cal. Civ. Proc. Code §§ 708.020 and 708.030, seeking information
`about PersonalWeb’s assets. (Exs. C & D.) On April 21, 2021 Amazon again asked PersonalWeb
`to meet and confer about securing the judgment and to provide asset information, and Amazon also
`gave notice that it would seek a debtor’s examination of PersonalWeb. (Ex. A.) PersonalWeb’s
`
`REQUEST FOR CASE MANAGEMENT
`CONFERENCE
`
`2
`
`Case Nos.: 5:18-md-02834-BLF;
`5:18-cv-00767-BLF; 5:18-cv-05619-BLF
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ATTORNEYS AT LAW
`
`FENWICK & WEST LLP
`
`
`
`

`

`Case 5:18-md-02834-BLF Document 659 Filed 04/26/21 Page 4 of 4
`
`
`
`counsel from Stubbs Alderton & Markiles has not withdrawn from its representation of
`PersonalWeb in this case and remains counsel of record. Nevertheless, Jeffrey Gersh of that firm
`responded to Amazon’s last request: “We do not represent Pweb in the post judgment proceedings.
`You have no authority to serve us with any documents relating thereto.” (Id.) Mr. Gersh conceded
`that Amazon may conduct discovery in aid of enforcement in this case. (See id. (“I never said a
`new case filing was required.”) But he still maintained his objection based on a claim that “all the
`MDL cases are done, judgment entered and the file closed.” (Id.) PersonalWeb is thus attempting
`to evade payment of the judgment by having its attorneys claim that they represent it in this case
`for some purposes but not others and can only be served in this case for the specific purposes they
`select.
`
`REQUEST FOR CONFERENCE
`Amazon respectfully requests a telephonic conference with the Court at a convenient time
`to discuss the above issues. Amazon has sought to confer with PersonalWeb about this request,
`including to determine whether any PersonalWeb counsel of record would even attend a case
`management conference concerning judgment enforcement given its claim to have no counsel
`retained for that purpose. (Ex. A.) PersonalWeb has not responded.
`
`
`Date: April 26, 2021
`
`Respectfully submitted,
`FENWICK & WEST LLP
`
`
`By: /s/ Todd R. Gregorian
`TODD R. GREGORIAN (CSB No. 236096)
`Counsel
`for AMAZON.COM,
`INC.,
`AMAZON WEB SERVICES, INC., and
`TWITCH INTERACTIVE, INC.
`
`
`
`
`
`REQUEST FOR CASE MANAGEMENT
`CONFERENCE
`
`3
`
`Case Nos.: 5:18-md-02834-BLF;
`5:18-cv-00767-BLF; 5:18-cv-05619-BLF
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ATTORNEYS AT LAW
`
`FENWICK & WEST LLP
`
`
`
`