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`Case 5:18-md-02834-BLF Document 728-3 Filed 02/10/22 Page 1 of 5
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`MICHAEL A. SHERMAN (SBN 94783)
`masherman@stubbsalderton.com
`JEFFREY F. GERSH (SBN 87124)
`jgersh@stubbsalderton.com
`STUBBS ALDERTON & MARKILES, LLP
`15260 Ventura Blvd., 20th Floor
`Sherman Oaks, CA 91403
`Telephone:
`(818) 444-4500
`Facsimile:
`(818) 444-4520
`
`Attorneys for PERSONALWEB
`TECHNOLOGIES, LLC
`(Excluding Post Judgment Debtor
`Collection Proceedings)
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
`CASE NO.: 5:18-md-02834-BLF
`IN RE PERSONAL WEB TECHNOLOGIES,
`LLC, ET., AL., PATENT LITIGATION
`Case No.: 5:18-cv-00767-BLF
`
`Case No.: 5:18-cv-05619-BLF
`DECLARATION OF MICHAEL
`SHERMAN IN SUPPORT OF STUBBS
`ALDERTON & MARKILES, LLP’S
`SECOND MOTION TO WITHDRAW AS
`COUNSEL FOR PERSONALWEB
`TECHNOLOGIES, LLC PURSUANT TO
`CALIFORNIA RULES OF
`PROFESSIONAL CONDUCT, RULE
`1.16(a)(2)
`
`
`AMAZON.COM, INC. and AMAZON WEB
`SERVICE, INC.,
`
` Plaintiffs,
`v.
`PERSONALWEB TECHNOLOGIES, LLC, et
`al.,
` Defendants.
`
`PERSONALWEB TECHNOLOGIES, LLC, et
`al.,
`
`
`
`
`v.
`
`TWITCH INTERACTIVE, INC.,
`
`
`
`Plaintiffs,
`
`Defendant.
`
`
`
`SHERMAN DECL. ISO MOTION TO WITHDRAW
`AS COUNSEL FOR PERSONALWEB
`
`
`
`
`
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-00767-BLF
`CASE NO.: 5:18-cv-05619-BLF
`
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`4895-3142-9389, V. 5
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`

`

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`Case 5:18-md-02834-BLF Document 728-3 Filed 02/10/22 Page 2 of 5
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`
`DECLARATION OF MICHAL A. SHERMAN
`I am a member of the bar of the State of California and am admitted to practice before
`1.
`the United States District Court for the Northern District of California. I am a partner at Stubbs
`Alderton & Markiles, LLP (“SAM”). The facts herein are, unless otherwise stated, based upon
`personal knowledge, and if called upon to do so, I could, and would testify to their truth under oath.
`I submit this Declaration in support of SAM’s Second Motion to Withdraw as Counsel for
`PersonalWeb Technologies, LLC (“Motion”).
`2. This is SAM’s second Motion to unconditionally withdraw immediately from its
`representation of PersonalWeb Technologies, LLC (“PersonalWeb”). At the time of the briefing
`of the first Motion to Withdraw (Dkt. 688), I was unaware of the facts set forth below — facts and
`circumstances that arose after our having first moved for withdrawal (specifically those in
`paragraphs 3, and 5-10). In light of the facts and circumstances that arose below and with the
`concurrence of recognized legal ethics experts, I believe that SAM is required to pursue this instant
`filing.
`3. The Court has familiarity from the first motion of PersonalWeb’s discharge of SAM
`of Mr. Richards’ communications in the late April 2021 time-frame about his intention of
`representing PersonalWeb in all post judgment collection proceedings, and Mr. Richards’ advice
`to Amazon of same, including his advice that SAM had no “authori[ty] to do anything post
`judgment.” In addition to those facts and additional communications where I cannot divulge the
`contents of due to their privileged nature, I fully expected in late April 2021 extending through
`early summer 2021-time frame, that it would only be a short period of time before SAM would be
`substituted out of the post-judgment proceedings pending before the District Court. My confidence
`about this substitution matter waned (a) as time elapsed following the Court’s June 25 Order
`without PersonalWeb substituting any attorney into the case as I believed would be the case, and
`(b) certainly not later than late summer/early fall – following the time after the June 25 Order, when
`with knowledge of PersonalWeb representatives, SAM transmitted partial documents/information
`to Amazon in response to the various orders. Shortly following that period of time that the SAM
`offices transmitted those documents, I and others at SAM had further privileged communications
`that I cannot disclose the contents of, that contributed to my confidence level further decreasing on
`the issue of substitution.
`
`
`SHERMAN DECL. ISO MOTION TO WITHDRAW
`AS COUNSEL FOR PERSONALWEB
`
`
`
`4895-3142-9389, V. 5
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-00767-BLF
`CASE NO.: 5:18-cv-05619-BLF
`
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`Case 5:18-md-02834-BLF Document 728-3 Filed 02/10/22 Page 3 of 5
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`I became aware that, in May, 2021 a California state court receiver was appointed in
`4.
`relation to certain indebtedness that PersonalWeb owes various creditors, captioned Brilliant
`Digital Entertainment Inc., et al., v. PersonalWeb, et al. (Case No. 21VECV00575) pending in
`the Los Angeles Superior Court. Neither SAM nor any of its attorneys represent PersonalWeb or
`anyone in that receivership proceeding.
`Following the April 27, 2021 order of this Court, and the Magistrate Judge’s order
`5.
`compelling compliance and responses to post judgment discovery (Dkts. 664-665 and 704),
`PersonalWeb has provided only limited documents and information to enable SAM to respond,
`which information was produced to Amazon on July 30, 2021 (consisting of approximately 2,000
`pages). Without divulging the contents of privileged communications between SAM and
`PersonalWeb, I know that, following that production to Amazon, SAM was not authorized by
`PersonalWeb representatives to produce additional materials called for by said orders, and that
`PersonalWeb did not fully cooperate in responding to SAM’s requests for complete information
`needed to comply with those orders.
`In e-mail communications between attorneys in my firm and Amazon counsel in late
`6.
`August and September 2021 that either I was copied on or that were forwarded to me, counsel for
`Amazon indicated it planned to move for sanctions against PersonalWeb and SAM. True and
`correct copies of those communications are attached to the Declaration of Jeffrey Gersh, marked
`as Exhibit I.
`7. On January 28, 2022 SAM attorneys received an email from Amazon’s counsel
`concerning the status of PersonalWeb’s compliance with the Magistrate Judge’s orders and
`reiterating a request for much of the court-ordered information, which SAM has been unable to
`substantively respond to because PersonalWeb representatives have not cooperated with SAM in
`relation to that email. Mr. Gersh had timely forwarded that email to PersonalWeb representatives.
`A true and correct copy of that e-mail, as well as my reply, is attached hereto as Exhibit G.
`8. The firm has enjoyed an excellent relationship with PersonalWeb and its
`representatives going back many years. In the years I worked directly with PersonalWeb
`representatives going back to 2017, I had never experienced a time when SAM’s requests for
`information were not responded to, or where to my knowledge SAM’s advice had been ignored.
`Yet, beginning in the early summer 2021 time frame, and accelerating over the past six months, it
`
`
`SHERMAN DECL. ISO MOTION TO WITHDRAW
`AS COUNSEL FOR PERSONALWEB
`
`
`
`4895-3142-9389, V. 5
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-00767-BLF
`CASE NO.: 5:18-cv-05619-BLF
`
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`Case 5:18-md-02834-BLF Document 728-3 Filed 02/10/22 Page 4 of 5
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`became clear to me that a break-down in communications was occurring. A major inflection point
`in this break-down was the short period of time immediately leading up to the January 20, 2022
`Case Management Conference and following, where multiple direct questions that SAM attorneys
`have asked of PersonalWeb representatives have not been answered fully and/or directly, where
`advice is not being followed, and where our ability to meaningfully communicate with
`PersonalWeb representatives is significantly hampered.
`9. After having checked the receivership docket, I became aware that, over six months
`following Amazon having obtained its judgment against PersonalWeb, on December 7, 2021
`Amazon finally filed a notice of lien pursuant to Code of Civil Procedure §708.410, an avenue I
`know that was specifically noted in an Order of the Los Angeles Superior Court dated November
`17, 2020 for Amazon to protect its interests as a judgment creditor. A true and correct copy of the
`November 17, 2021 Order is attached hereto as Exhibit H. Further, while this Court had indicated
`in May 2021 of Amazon having the right to conduct judgment debtor examinations — but not
`within the geographic locus of the Northern District of California — as of this date, I am unaware
`of any activity by Amazon to have its judgment entered and/or recognized in other United States
`District Courts or to notice any judgment debtor examinations of PersonalWeb representatives out
`in any other District Courts outside of California, in locations closer to where PersonalWeb
`representatives may be located.
`10. SAM presently remains engaged as counsel for PersonalWeb in two other matters
`relating to PersonalWeb’s seeking review of decisions of this District Court, (a) one a petition for
`certiorari filed on April 2, 2021 in the U.S. Supreme Court, PersonalWeb Techs., LLC v. Patreon,
`Inc., No. 20-1394, 2021 WL 1298201 seeking review of an order of the Federal Circuit U.S.C.A.
`affirming this District Court’s granting of summary judgment on the application of preclusion
`matters including an earlier decision of the US Supreme Court, Kessler v. Eldred, 206 U.S. 285
`(1907) where the firm serves as co-counsel, and the other (b) an appeal pending before the USCA
`for the Federal Circuit, appeal nos. 2021-1858, 2021-1869, 2021-1860, captioned In Re:
`PersonalWeb Technologies, LLC; Amazon.com, Inc., et. al. v. PersonalWeb Technologies, LLC,
`et. al. If PersonalWeb continues to refuse to substitute Mr. Richards or other counsel into the
`District Court matter post-filing and service of this Motion, SAM will be shortly filing motions to
`withdraw from its representation of PersonalWeb in these pending appellate matters due to the
`
`
`SHERMAN DECL. ISO MOTION TO WITHDRAW
`AS COUNSEL FOR PERSONALWEB
`
`
`
`4895-3142-9389, V. 5
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-00767-BLF
`CASE NO.: 5:18-cv-05619-BLF
`
`3
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`Case 5:18-md-02834-BLF Document 728-3 Filed 02/10/22 Page 5 of 5
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`actual conflict in the respective interests of PersonalWeb and SAM, resulting in SAM’s inability
`to continue to represent PersonalWeb in any matters.
`11. Concurrent with the filing of this Motion, we will be providing written notice of all
`filed moving papers to PersonalWeb’s representatives, Kevin Bermeister, Michael Weiss, and
`Ronald Richards, via their regularly used email addresses.
` Executed this 10th day of February 2022 at Sherman Oaks, California.
`
`
`
`
`By: /s/ Michael A. Sherman
`Michael A. Sherman
`
`
`
`
`
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`SHERMAN DECL. ISO MOTION TO WITHDRAW
`AS COUNSEL FOR PERSONALWEB
`
`
`
`4895-3142-9389, V. 5
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`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-00767-BLF
`CASE NO.: 5:18-cv-05619-BLF
`
`