`
`Case 5:18-md-02834-BLF Document 717 Filed 01/07/22 Page 1 of 10
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`
`
`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
`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
`
`Case No.: 5:18-md-02834-BLF
`Case No.: 5:18-cv-00767-BLF
`Case No.: 5:18-cv-05619-BLF
`
`REQUEST OF AMAZON.COM, INC.,
`AMAZON WEB SERVICES, INC., AND
`TWITCH INTERACTIVE, INC. FOR
`CASE MANAGEMENT CONFERENCE
`
`
`IN RE: PERSONAL WEB TECHNOLOGIES,
`LLC ET AL., PATENT LITIGATION
`
`AMAZON.COM, INC., and AMAZON WEB
`SERVICES, INC.,
`Plaintiffs
`
`v.
`PERSONALWEB TECHNOLOGIES, LLC and
`LEVEL 3 COMMUNICATIONS, LLC,
`Defendants,
`
`PERSONALWEB TECHNOLOGIES, LLC, and
`LEVEL 3 COMMUNICATIONS, LLC,
`
`Plaintiffs,
`
`v.
`
`TWITCH INTERACTIVE, INC.,
`
`Defendant.
`
`
`
`
`
`REQUEST FOR CMC
`
`
`
`CASE NOS. 5:18-md-02834-BLF,
`5:18-cv-00767-BLF, and
`5:18-cv-05619-BLF
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`Amazon.com, Inc., Amazon Web Services, Inc., and Twitch Interactive, Inc. (collectively,
`“Amazon”) respectfully request that the Court hold a case management conference as soon as
`practical at the Court’s convenience to confirm both that it retains jurisdiction over this case and its
`judgment and that PersonalWeb Technologies, LLC (“PersonalWeb”) must comply with valid post-
`judgment discovery orders of the Court. The Court has twice ordered PersonalWeb to provide
`documents and information about its finances. PersonalWeb has done nothing to comply but make
`a small document production (collected without meaningful supervision by its counsel of record)
`and provide interrogatory responses that assert objections the Court already deemed waived and
`incorporate the entire document production by reference. Mere hours after committing in writing
`to taking additional steps to comply, Jeffrey Gersh, PersonalWeb’s counsel at Stubbs Alderton &
`Markiles LLP (“Stubbs Alderton”) sent an email reversing course. He argued that PersonalWeb
`need no longer comply with this Court’s orders at all because a California state court appointed a
`receiver over PersonalWeb’s assets back in May 2021. But at the hearing on the last motion to
`compel compliance, Mr. Gersh himself argued for PersonalWeb and raised no such objection even
`after Amazon informed the Court of the receivership.
`The Court previously found that “PersonalWeb appears to be thwarting Amazon’s
`legitimate interest in collecting its judgment,” and that its manipulation of its counsel of record,
`“along with the chameleon-like efforts of Personal Web to use this time to make itself judgment
`proof, amount to a concerted effort to thwart collection of the judgment ordered by this Court.”
`(Dkt. 694 at 3-4.) Those observations remain true. The receivership is fraudulent. The plaintiffs
`in the state court action are insider-investors in PersonalWeb who in some cases share overlapping
`membership. The receivership is based on an alleged $19 million in loans that do not mature until
`December 31, 2022. PersonalWeb’s investors simply demanded repayment in full as soon as the
`Court issued the fee award in this case; immediately sought the receivership (to which PersonalWeb
`immediately consented, submitting a declaration on the stationery of insider-investors’ counsel);
`and have since used the receivership to funnel hundreds of thousands of dollars in additional
`payments through PersonalWeb to Stubbs Alderton and appellate counsel MoloLamken LLP, to
`continue prosecuting patent infringement lawsuits in PersonalWeb’s name and for the insider-
`CASE NOS. 5:18-md-02834-BLF,
`5:18-cv-00767-BLF, and
`5:18-cv-05619-BLF
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`REQUEST FOR CMC
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`
`
`

`

`Case 5:18-md-02834-BLF Document 717 Filed 01/07/22 Page 3 of 10
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`investors’ benefit.
`Amazon requests a conference to seek guidance concerning Stubbs Alderton’s new round
`of belated objections that the Court lacks authority to enforce its judgment and PersonalWeb need
`not comply with past discovery orders due to the receivership.
`BACKGROUND
`The Court’s judgment and fee award. The Court entered judgment in favor of Amazon in
`this case on October 28, 2020. (Dkt. 643.) On March 2, 2021, the Court awarded Amazon
`$4,615,242.28 in fees and $203,300.10 in non-taxable costs against PersonalWeb for work
`performed until February 2020, and on April 19, 2021, the Court awarded Amazon an additional
`$571,961.71 in fees and $11,120.97 in costs for work performed between February 2020 and
`February 2021. (Dkts. 648, 656.) On July 27, 2021, the Court entered an amended judgment in
`favor of Amazon for a total amount of $5,403,122.68. (Dkt. 708.)
`Insider investors demand repayment of purported demand instruments. The original
`March 2 fee order apparently prompted PersonalWeb’s beneficial owners to trigger an asset
`protection scheme. Insider-investors Brilliant Digital Entertainment, Inc. (“BDE”), Europlay
`Capital Advisors, LLC (“ECA”), Claria Innovations, LLC (“Claria”), and Monto Holdings Pty Ltd
`(“Monto”) (collectively, “Insiders”) had characterized a major portion of their investment in
`PersonalWeb as debt: four alleged loans first issued between August 2010 and May 2012. Security
`agreements for the loans issued in May 2012 and March 2014 pledging “all of [PersonalWeb’s]
`tangible and intangible assets” as collateral. All four loans were also regularly amended and
`restated, most recently on December 31, 2019, and did not mature until December 31, 2022. Even
`though these “loans” were less than halfway through their term (and had already been amended and
`restated multiple times over the course of nearly a decade), Insiders demanded repayment in full
`based on the amounts due as of March 31, 2021.
`Insiders file the receivership action. After demanding repayment, Insiders then filed a
`receivership action in California state court against PersonalWeb on April 27, 2021. (Declaration
`of Todd R. Gregorian in Support of Request for CMC (“Gregorian Decl.”), Ex. 1 [Insiders’
`Complaint].) All four Insiders have the same beneficial owners as PersonalWeb: Claria owned
`CASE NOS. 5:18-md-02834-BLF,
`5:18-cv-00767-BLF, and
`5:18-cv-05619-BLF
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`REQUEST FOR CMC
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`
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`

`

`Case 5:18-md-02834-BLF Document 717 Filed 01/07/22 Page 4 of 10
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`99% of PersonalWeb and had governing authority when PersonalWeb was formed; Monto currently
`owns 20% of PersonalWeb; the founder of BDE was Kevin Bermeister, the Non-Executive
`Chairman of PersonalWeb; and the former chairman and CEO of BDE, Kevin Bermeister’s cousin
`Mark Dyne, founded ECA. (Gregorian Decl., Ex. 2 [Amazon’s Complaint-In-Intervention], at 3.)
`Insiders requested the appointment of a receiver and the entry of a preliminary injunction enjoining
`any other PersonalWeb creditors from enforcing any claim, debt, right, lien, or interest against
`PersonalWeb. (Gregorian Decl., Ex. 1 [Insiders’ Complaint], at 15-17.) Within days,
`PersonalWeb, through its President, Michael Weiss, signed a declaration prepared on the stationery
`of Insiders’ counsel conceding that PersonalWeb owed $19 million to Insiders and could not pay,
`and consenting to the appointment of a receiver and the entry of a preliminary injunction.
`(Gregorian Decl., Ex. 3 [Weiss Decl.].) Neither the complaint nor any of Insiders’ other filings
`before the state court disclosed the fact that Amazon is a creditor of PersonalWeb or that the
`ultimate beneficial owners of PersonalWeb are the same as the ultimate beneficial owners of
`Insiders. In other words, PersonalWeb (i.e., Weiss and Bermeister) colluded with the Insiders (i.e.,
`Bermeister and family) to try to place PersonalWeb beyond the reach of this Court’s judgment
`while it continues to pursue its business in the normal course.
`Entry of preliminary injunction. On May 20, 2021, PersonalWeb and Insiders stipulated
`to entry of the preliminary injunction. (Gregorian Decl., Ex. 4 [Stipulated Preliminary Injunction].)
`On June 1, 2021, the California state court entered it. (Gregorian Decl., Ex. 5 [Preliminary
`Injunction Order].) The preliminary injunction establishes that the receivership will be run
`exclusively for Insiders’ benefit (to the detriment of PersonalWeb’s other creditors). It purports to
`prohibit any PersonalWeb creditor from enforcing claims against PersonalWeb during the
`receivership. But (perhaps due to a drafting error) it also expressly carves out the proceedings of
`any then-pending intellectual property actions filed by PersonalWeb, such as this case:
`IT IS FURTHER ORDERED that except by leave of this Court,
`during the pendency of the receivership ordered herein, Defendant
`PersonalWeb, and all of its customers, principals, investors,
`collectors, stockholders, lessors, other creditors, judgment holders,
`and other persons seeking to establish or enforce any claim, debt,
`right, lien, or interest against Defendant PersonalWeb, or any of its
`
`REQUEST FOR CMC
`
`
`
`3
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`CASE NOS. 5:18-md-02834-BLF,
`5:18-cv-00767-BLF, and
`5:18-cv-05619-BLF
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`Case 5:18-md-02834-BLF Document 717 Filed 01/07/22 Page 5 of 10
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`subsidiaries or affiliates, and all others acting for or on behalf of
`such persons, attorneys, trustees, agents, sheriffs, constables,
`marshals, and any other officers and their deputies, and their
`respective attorneys, servants, agents, and employees, be and are
`hereby stayed from:
`
`(a) Commencing, prosecuting, continuing, or enforcing any suit,
`judgment, lien, levy, or proceeding against Defendant PersonalWeb,
`or any of its subsidiaries or affiliates, except such actions may be
`filed to toll any applicable statute of limitations;
`
`(b) Commencing, prosecuting, continuing, or entering into any suit
`or proceeding in the name or on behalf of Defendant PersonalWeb,
`or any of their subsidiaries or affiliates, except for any pending
`enforcement actions by Defendant PersonalWeb concerning it [sic]
`intellectual property claims;
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`(Id. at 4 (emphasis added).)
`
`Insiders continue to fund PersonalWeb intellectual property suits by funneling protected
`payments through the receivership. Through the receivership, Insiders have begun “lending”
`PersonalWeb additional funds to pay its ongoing business expenses, including paying Stubbs
`Alderton and MoloLamken to continue to pursue claims against Amazon, its customers, and others
`such as Google and Facebook. (Gregorian Decl., Exs. 6 [Receiver’s Motion] & 7 [Order Granting
`Receiver’s Motion].)
`This Court’s Discovery Orders. PersonalWeb is subject to two orders to provide post-
`judgment debtor discovery to Amazon. (Dkts. 664, 704.) On July 30 and August 6, 2021,
`PersonalWeb served interrogatory responses that improperly asserted objections that the Magistrate
`Judge had already ruled were waived, and (rather than provide substantive responses) simply
`incorporated its entire document production chosen by PersonalWeb without oversight by Stubbs
`Alderton. (See, e.g., Gregorian Decl., Ex. 8 [Interrogatory Responses], at 1-3 (broadly
`incorporating PersonalWeb’s entire document production without identifying any specific Bates
`numbers); id., at 4 (for Interrogatory Nos. 9 & 10, asserting the attorney/client privilege without
`providing any substantive response).) Indeed, in an e-mail exchange, Stubbs Alderton admitted
`“the docs that [Amazon] received is all [Stubbs Alderton] was provided” by PersonalWeb. (See
`Gregorian Decl., Ex. 9 [E-mail Exchange] at 3 (Counsel for Amazon: “When I asked you how a
`CASE NOS. 5:18-md-02834-BLF,
`5:18-cv-00767-BLF, and
`5:18-cv-05619-BLF
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`REQUEST FOR CMC
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`search for responsive documents was conducted, you stated that you forwarded the requests for
`production to PersonalWeb and left it to your client to collect and provide you with responsive
`documents.”); id. at 2 (Mr. Gersh, Stubbs Alderton: “The docs you received is all I was
`provided.”).) Stubbs Alderton further represented, “We are working on assembling docs for you
`and I am working on getting further responses where appropriate.” (Id., at 1.) Within hours, Stubbs
`Alderton did an about-face, asserting that the state court receivership and injunction relieves
`PersonalWeb of its responsibility to comply with this Court’s orders, asserting, “It seems to me that
`your continued action to force discovery is a violation of that injunction.” (Id.)
`Amazon attempts to intervene in the receivership. On August 10, 2021, Amazon sought
`to intervene as a plaintiff-creditor in the state court action because it has an interest in the
`PersonalWeb estate and any judgment rendered in its absence prioritizing the claims of Insiders
`would impair Amazon’s ability to protect that interest. Insiders and PersonalWeb did not oppose
`the motion. But on November 17, 2021, the California state court denied it anyway, ruling that
`Amazon did not have “a sufficient interested [sic] in the current litigation to justify this Court
`granting intervention.” (Ex. 10 [Order Denying Motion to Intervene], at 5.) Consistent with the
`carve out in the preliminary injunction, the California state court directed that Amazon could
`instead take other actions to enforce its judgment against PersonalWeb, specifically by filing a lien
`against the proceeds of the receivership. (Id., at 6.)
`Stubbs Alderton’s involvement with PersonalWeb. SAM Venture Partners, Stubbs
`Alderton’s venture capital arm, is a part-owner of PersonalWeb. (See Case No. 5:18-cv-05619-
`BLF, Dkt. 3; Dkt. 611-5 (Bermeister Dep. Tr.) at 62:2-10; Dkt. 612-9.) SAM Venture Partners is
`seeded with money from Stubbs Alderton partners and offers legal services in exchange for equity
`in startup companies. (Dkt. 612-9.) Stubbs Alderton named-partner Murray Markiles is a founding
`director of PersonalWeb. (Gregorian Decl., Ex. 11 [Operating Agreement], at 13.) On information
`and belief, these parties helped create the ownership structure that kept PersonalWeb
`undercapitalized and has now made it judgment-proof. They also knowingly continue to receive
`the direct benefit of the asset protection scheme, using it to funnel additional payments to Stubbs
`Alderton and to continue pursuing speculative and wasteful patent litigation in which SAM Venture
`CASE NOS. 5:18-md-02834-BLF,
`5:18-cv-00767-BLF, and
`5:18-cv-05619-BLF
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`REQUEST FOR CMC
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`

`

`Case 5:18-md-02834-BLF Document 717 Filed 01/07/22 Page 7 of 10
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`Partners has a financial interest.
`
`ARGUMENT
`Amazon requests that this Court provide guidance as to whether the state court receivership
`action deprived it of jurisdiction or otherwise voided its pre-existing discovery orders. While the
`Supremacy Clause of the Constitution makes this seem an almost laughable question,
`PersonalWeb’s counsel has forced the issue—staying silent about the receivership until after the
`Court confirmed that PersonalWeb must comply, and then attempting to raise a belated objection
`to excuse PersonalWeb’s continued flouting of the Court’s orders.
`This Court entered judgment in favor of Amazon and ordered PersonalWeb to pay
`approximately $5.4 million in attorney fees and costs. The Supreme Court has long held that a
`court retains jurisdiction to enforce its judgments:
`[T]he jurisdiction of a court is not exhausted by the rendition of the
`judgment, but continues until that judgment shall be satisfied. . . .
`Process subsequent to judgment is as essential to jurisdiction as
`process antecedent to judgment, else the judicial power would be
`incomplete and entirely inadequate to the purposes for which it was
`conferred by the Constitution.
`
`Riggs v. Johnson Cty., 73 U.S. 166, 187 (1868). Courts in this district have likewise held that “a
`district court has the inherent power to enforce its orders.” Nikko Materials USA, Inc. v. R.E. Serv.
`Co., No. 03-cv-02549 SBA, 2006 WL 1749550, at *2 (N.D. Cal. June 22, 2006); see also Spallone
`v. United States, 493 U.S. 265, 276 (1990). This power is derived “from the implied powers
`‘necessarily vested in courts to manage their own affairs as to achieve the orderly and expeditious
`disposition of cases.’” Nikko, 2006 WL 1749550, at *2 (quoting Link v. Wabash R. Co., 370 U.S.
`626, 630-31 (1962)). Thus, this Court retains jurisdiction to enforce its judgment against
`PersonalWeb and its discovery orders remain in full effect.
`PersonalWeb waived any objection based on the state court receivership and preliminary
`injunction. The Court originally compelled the discovery at issue on April 27, 2021. The
`Magistrate Judge has already heard a dispute about whether PersonalWeb had to comply with the
`Court’s order and has already ruled that PersonalWeb waived its objections and must provide the
`discovery. (Dkt. 704); see Fed. R. Civ. P. 33(b)(4); Richmark Corp. v. Timber Falling Consultants,
`
`REQUEST FOR CMC
`
`
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`6
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`5:18-cv-00767-BLF, and
`5:18-cv-05619-BLF
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`FENWICK & WEST LLP
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`959 F.2d 1468, 1473 (9th Cir. 1992); Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981).
`PersonalWeb and Stubbs Alderton had multiple opportunities since the Spring of 2021 to
`raise the state court proceeding as a defense before this Court, and they instead chose to sit on their
`hands and conceal the details of the pending scheme from the Court. When the parties appeared
`before the Magistrate Judge months later, on July 20, 2021, Amazon out of an abundance of caution
`informed the Court of the pending receivership action. (See Dkt. 707 at 5:12-17.) Mr. Gersh on
`behalf of PersonalWeb elected not to assert any objection based on it. (See id. at 7:19-8:1.) Since
`that time, PersonalWeb has also agreed that Amazon may move for a supplemental award of
`attorney fees, further confirming that the state court injunction does not bar the ongoing
`proceedings before this Court. (Dkts. 711, 715.) PersonalWeb has thus waived any claim that the
`state court proceeding precludes post-judgment enforcement or excuses it from complying with this
`Court’s orders. Richmark, 959 F.3d at 1473; Davis, 650 F.2d at 1160.
`The preliminary injunction does not apply to this action. This Court retains post-judgment
`enforcement jurisdiction because the preliminary injunction carves out this proceeding.
`Specifically, clause (b) prohibits another entity from “[c]ommencing, prosecuting, continuing, or
`entering into any suit or proceeding in the name or on behalf of Defendant PersonalWeb, or any of
`their subsidiaries or affiliates, except for any pending enforcement actions by Defendant
`PersonalWeb concerning it intellectual property claims.” (Gregorian Decl., Ex. 5 [Preliminary
`Injunction Order] at 4 (emphasis added).) PersonalWeb initiated this action involving intellectual
`property claims against Amazon’s customers and the preliminary injunction therefore does not
`purport to enjoin proceedings in this Court.
`This Court retains jurisdiction under the Abstention Doctrine. This Court also retains
`post-judgment enforcement jurisdiction under the abstention doctrine outlined in Colorado River
`Water Conservation District v. United States, 424 U.S. 800 (1976). In the Ninth Circuit, eight
`factors are considered in determining the appropriateness of a dismissal or stay of a federal court
`action in favor of a parallel court action under Colorado River:
`(1) which court first assumed jurisdiction over any property at stake;
`(2) the inconvenience of the federal forum; (3) the desire to avoid
`piecemeal litigation; (4) the order in which the forums obtained
`CASE NOS. 5:18-md-02834-BLF,
`5:18-cv-00767-BLF, and
`5:18-cv-05619-BLF
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`REQUEST FOR CMC
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`Case 5:18-md-02834-BLF Document 717 Filed 01/07/22 Page 9 of 10
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`jurisdiction; (5) whether federal law or state law provides the rule of
`decision on the merits; (6) whether the state court proceedings can
`adequately protect the rights of the federal litigants; (7) the desire to
`avoid forum shopping; and (8) whether the state court proceedings
`will resolve all issues before the federal court.
`
`R.R. Street & Co. v. Transport Ins. Co., 656 F.3d 966, 978-79 (9th Cir. 2011). As noted in the
`eighth factor above, “[i]n this Circuit, the narrow Colorado River doctrine requires that the pending
`state court proceeding resolve all issues in the federal suit.” Holder v. Holder, 305 F.3d 854, 859
`(9th Cir. 2002); see also Seneca Ins. Co. v. Strange Land, Inc., 862 F.3d 835, 842 (9th Cir. 2017).
`Indeed, if “there exists a substantial doubt as to whether the state court proceedings will resolve all
`of the disputed issues in [the federal] case, it is unnecessary for [the court] to weigh the other factors
`included in the Colorado River analysis.” Intel Corp. v. Advanced Micro Devices, Inc., 12 F.3d
`908, 913 n.7 (9th Cir. 1993). Here, this dispositive requirement is not met because the issue of
`satisfaction of this Court’s judgment and award of attorney fees will not be resolved by a
`receivership action between PersonalWeb and Insiders. Indeed, the California state court has
`denied Amazon’s motion for leave to intervene in the receivership action, thus, preventing Amazon
`from obtaining relief in that proceeding. (Gregorian Decl., Ex. 10 [Order Denying Motion to
`Intervene].)
`Just as important, there is no conflict whatsoever between the Court’s current discovery
`orders and the state court receivership. It is unclear whether the receiver has even taken possession
`of the records the Court ordered PersonalWeb to produce. (If it has, it occurred after the Court’s
`discovery orders when PersonalWeb and Stubbs Alderton both knew perfectly well that they should
`retain copies and produce them.) Regardless, producing electronic copies of the records does not
`interfere in any way with the receiver’s management of PersonalWeb’s estate.
`
`
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`REQUEST FOR CMC
`
`
`
`8
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`CASE NOS. 5:18-md-02834-BLF,
`5:18-cv-00767-BLF, and
`5:18-cv-05619-BLF
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`ATTORNEYS AT LAW
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`FENWICK & WEST LLP
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`Case 5:18-md-02834-BLF Document 717 Filed 01/07/22 Page 10 of 10
`
`REQUEST FOR CASE MANAGEMENT CONFERENCE
`Amazon requests that the Court schedule a case management conference as soon as
`practicable to clarify whether the California state court has deprived this Court of jurisdiction or
`excused PersonalWeb from complying with the Court’s discovery orders, particularly those that
`issued without PersonalWeb raising any objection based on the state court action or receivership.
`
`Dated: January 7, 2022
`
`Respectfully submitted,
`
`FENWICK & WEST LLP
`
`By: /s/Todd R. Gregorian
`TODD R. GREGORIAN (CSB No. 236096)
`Attorneys for AMAZON.COM, INC.,
`AMAZON WEB SERVICES, INC., and
`TWITCH INTERACTIVE, INC.
`
`REQUEST FOR CMC
`
`9
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`CASE NOS. 5:18-md-02834-BLF,
`5:18-cv-00767-BLF, and
`5:18-cv-05619-BLF
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`1 2 3 4 5 6 7 8 9
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`1818
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`2020
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`2121
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`2222
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`2323
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`2424
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`2525
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`2626
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`2727
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`2828
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`ATTORNEYS AT LAW
`
`FENWICK & WEST LLP
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`