Case 5:18-md-02834-BLF Document 728-6 Filed 02/10/22 Page 1 of 4
`
`
`
`
`
`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 JEFFREY F. GERSH
`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.
`
`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
`
`
`
`
`GERSH DECL. ISO MOTION TO WITHDRAW
`AS COUNSEL FOR PERSONALWEB
`
`
`4860-9216-5645, V. 5
`
`
`
`
`
`
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-00767-BLF
`CASE NO.: 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
`
`
`Case 5:18-md-02834-BLF Document 728-6 Filed 02/10/22 Page 2 of 4
`
`
`
`DECLARATION OF JEFFREY F. GERSH
`
`1.
`I am a member of the bar of the State of California and am admitted to practice before
`
`
`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 through 8). 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 timeframe 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 the
`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.
`
`
`GERSH DECL. ISO MOTION TO WITHDRAW
`AS COUNSEL FOR PERSONALWEB
`
`4860-9216-5645, V. 5
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-00767-BLF
`CASE NO.: 5:18-cv-05619-BLF
`
`1
`
`
`
`
`
`

`

`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
`
`
`Case 5:18-md-02834-BLF Document 728-6 Filed 02/10/22 Page 3 of 4
`
`
`
`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. For the most part, SAM obtains information about that
`receivership proceeding by reviewing the public docket, with occasional transmittals of
`information to it, primarily from the Receivers’ counsel. On August 10, 2021, Amazon filed a
`motion for leave to intervene in the receivership proceeding, on the basis that it held a $5.4 million
`judgment against PersonalWeb and therefore had an interest in the property involved in the
`litigation. The Los Angeles Superior Court denied that intervention motion in an Order that
`Amazon is appealing.
`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 2000
`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 any 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’s counsel in
`6.
`late August and September 9, 2021 that I either received, 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 hereto and 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. I timely forwarded that email to PersonalWeb representatives. A true and
`
`
`GERSH DECL. ISO MOTION TO WITHDRAW
`AS COUNSEL FOR PERSONALWEB
`
`4860-9216-5645, V. 5
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-00767-BLF
`CASE NO.: 5:18-cv-05619-BLF
`
`2
`
`
`
`
`
`

`

`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
`
`
`Case 5:18-md-02834-BLF Document 728-6 Filed 02/10/22 Page 4 of 4
`
`
`
`correct copy of that e-mail is attached hereto and marked as Exhibit J.
`
`SAM has enjoyed an excellent relationship with PersonalWeb and its representatives
`8.
`
`
`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 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 myself and other 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.
`
`I declare under the penalty of perjury under the laws of the United States of America
`
`that the foregoing is true and correct.
`
`
`
`Executed this 10th day of February, 2022 at Sherman Oaks, California.
`
`
`
`
`By: /s/ Jeffrey F. Gersh
`Jeffrey F. Gersh
`
`
`
`
`
`
`GERSH DECL. ISO MOTION TO WITHDRAW
`AS COUNSEL FOR PERSONALWEB
`
`4860-9216-5645, V. 5
`
`3
`
`
`
`
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-00767-BLF
`CASE NO.: 5:18-cv-05619-BLF
`
`