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`Case 5:18-md-02834-BLF Document 742-1 Filed 04/22/22 Page 1 of 7
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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
`
`IN RE: PERSONALWEB 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.
`
`Case No.: 5:18-md-02834-BLF
`Case No.: 5:18-cv-00767-BLF
`Case No. 5:18-cv-05619-BLF
`DECLARATION OF TODD R.
`GREGORIAN IN SUPPORT OF
`OPPOSITION OF AMAZON.COM,
`INC., AMAZON WEB SERVICES, INC.,
`AND TWITCH INTERACTIVE, INC.
`TO SECOND MOTION TO
`WITHDRAW AS COUNSEL BY
`STUBBS ALDERTON & MARKILES,
`LLP
`
`
`
`GREGORIAN DECL. ISO OPPOSITION
`TO MOTION TO WITHDRAW AS COUNSEL
`
`
`
`
`CASE NOS.: 5:18-md-02834-BLF;
`5:18-cv-00767-BLF; 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 742-1 Filed 04/22/22 Page 2 of 7
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`I am a partner at Fenwick & West LLP and counsel to Amazon.com, Inc., Amazon
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`Web Services, Inc. and Twitch Interactive, Inc. (collectively, “Amazon”) in this matter. I submit
`this declaration in support of the Opposition of Amazon.com, Inc., Amazon Web Services, Inc.,
`and Twitch Interactive, Inc. to Second Motion to Withdraw as Counsel by Stubbs Alderton &
`Markiles, LLP. I have personal knowledge of the facts set forth in this declaration.
`Mr. Kevin Bermeister is the Chairman and CEO of Brilliant Digital Entertainment,
`2.
`Inc. (“BDE”). Attached as Exhibit 1 is a true and accurate copy of Mr. Bermeister’s LinkedIn
`profile showing that he is an executive at BDE. Mr. Bermeister is also a director of Monto Holdings
`Pty Ltd (“Monto”). Attached as Exhibit 2 is a true and accurate copy of a publicly available
`company profile showing that he is an executive at Monto. Both BDE and Monto are insider-
`investors in PersonalWeb Technologies, LLC (“PersonalWeb”).
`On May 21, 2021, the California Superior Court ordered that the receiver Robb
`3.
`Evans & Associates LLC (“Robb Evans”) has exclusive control of PersonalWeb and the
`PersonalWeb collateral (which consisted primarily of this litigation and PersonalWeb’s other patent
`litigations which have since concluded) in the Order for Ex Parte Immediate Appointment of a
`Receiver. Attached as Exhibit 3 is a true and correct copy of this order.
`The California Superior Court also entered a separate injunction against
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`PersonalWeb’s employees, agents, etc. as well as its creditors, to prevent interference with
`PersonalWeb and the receiver’s control of the PersonalWeb estate. (Dkt. 717-6.) Since that time,
`the insider-investors directed by Mr. Bermeister, the receiver’s counsel, and the Stubbs Alderton &
`Markiles, LLP (“SAM”) attorneys of record for PersonalWeb, have each used the injunction to
`threaten Amazon and to try to prevent it from taking additional discovery in this case.
`a. On September 2, 2021, Mr. Michael Bubman, counsel for the receiver Robb
`Evans, threatened Amazon with contempt sanctions for purportedly
`violating the Superior Court receivership and preliminary injunction orders
`for continuing to pursue valid post-judgment discovery from PersonalWeb
`under this Court’s orders. Attached as Exhibit 4 is a true and correct copy
`of this correspondence.
`GREGORIAN DECL. ISO OPPOSITION
`TO MOTION TO WITHDRAW AS COUNSEL
`
`
`CASE NOS.: 5:18-md-02834-BLF;
`5:18-cv-00767-BLF; 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 742-1 Filed 04/22/22 Page 3 of 7
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`b. On September 14, 2021, Mr. Jeffrey Gersh of SAM committed to taking
`additional steps to make PersonalWeb comply with this Court’s orders to
`provide documents and interrogatory responses. Mere hours later, however,
`Mr. Gersh did an about-face and refused to do so, contending that Amazon’s
`insistence that PersonalWeb comply with this Court’s orders violates the
`Superior Court preliminary injunction. Attached as Exhibit 5 is a true and
`correct copy of this correspondence. But when the parties had appeared
`before the Magistrate Judge on the motion to compel compliance concerning
`this very discovery on July 20, 2021, Mr. Gersh raised no such objection.
`Amazon out of an abundance of caution had informed the Court of the
`pending receivership action. (See Dkt. 707 at 5:12-17.) Mr. Gersh addressed
`the receivership but elected not to assert any objection to discovery based on
`it. (See id. at 7:19-8:1.)
`c. On February 4, 2022, Mr. Bubman again threatened Amazon with contempt
`sanctions for requesting that the receiver not make any further payments out
`of the PersonalWeb estate until the appellate court resolves Amazon’s
`pending motion for a stay. Attached as Exhibit 6 is a true and correct copy
`of this correspondence.
`d. On March 3, 2022, both Mr. Michael Fletcher and Mr. Bruce Poltrock,
`counsel for the insider-investors BDE, Europlay Capital Advisors, LLC,
`Claria Innovations, LLC, and Monto (collectively, “Insiders”), threatened
`Amazon with contempt sanctions for pursuing discovery from several of
`these Insiders. Attached as Exhibit 7 is a true and correct copy of this
`correspondence. The Magistrate Judge later ordered the Insiders to produce
`documents over their objections based on the Superior Court receivership
`and injunction. (Dkt. 293 (18-cv-00767-BLF).)
`Amazon moved to intervene in the Superior Court proceeding to protect its rights in
`5.
`the PersonalWeb estate and to clarify its rights and obligations with respect to the receivership so
`
`GREGORIAN DECL. ISO OPPOSITION
`TO MOTION TO WITHDRAW AS COUNSEL
`
`
`2
`
`CASE NOS.: 5:18-md-02834-BLF;
`5:18-cv-00767-BLF; 5:18-cv-05619-BLF
`
`ATTORNEYS AT LAW
`
`FENWICK & WEST LLP
`
`
`
`

`

`Case 5:18-md-02834-BLF Document 742-1 Filed 04/22/22 Page 4 of 7
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`that it does not face the risk of a contempt proceeding (no matter how baseless) going forward. On
`November 17, 2021, the Superior Court denied Amazon’s motion to intervene, even though Insiders
`and PersonalWeb did not oppose the motion, ruling that Amazon did not have “a sufficient
`interested [sic] in the current litigation to justify this Court granting intervention.” Attached as
`Exhibit 8 is a true and correct copy of this order.
`On December 7, 2021, Amazon filed an amended notice of lien as the Superior Court
`6.
`suggested that was a way that Amazon could enforce this Court’s judgment. Attached as Exhibit
`9 is a true and correct copy of this amended lien. The lien is inadequate to protect Amazon’s rights
`however, as the ongoing payments to attorneys and the Insiders’ claims will exhaust the
`PersonalWeb estate.
`On December 13, 2021, Amazon moved for a stay pending appeal before the
`7.
`Superior Court seeking to preclude entry of the stipulated judgment between Insiders and
`PersonalWeb and to preclude any further distribution of PersonalWeb cash or assets to Amazon’s
`detriment. Attached as Exhibit 10 is a true and correct copy of this motion. The Superior Court
`will hear the stay motion on April 27, 2022.
`On January 14, 2022, Amazon filed a petition for a writ of supersedeas for a similar
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`stay pending appeal before the Second Appellate District, Court of Appeal of the State of
`California. Attached as Exhibit 11 is a true and correct copy of this motion.
`On March 25, 2022, Amazon filed its opening brief before the Second Appellate
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`District Court of Appeal of the State of California, seeking to reverse the Superior Court order
`denying leave to intervene. Attached as Exhibit 12 is a true and correct copy of this brief. This
`appeal remains pending.
`SAM’s motion to withdraw raises significant questions about SAM’s and the
`10.
`PersonalWeb representatives’ conduct in this case over the last year. In mid-February 2022, I twice
`emailed Mr. Michael Bubman, counsel for the receiver Robb Evans, to inquire about Robb Evans’
`role in managing PersonalWeb and the PersonalWeb collateral (i.e., this litigation). On February
`14, 2022, I memorialized a recent telephone conversation with Mr. Bubman, wherein Mr. Bubman
`on behalf of Robb Evans: (i) refused to provide the receiver’s monthly financial reports to Amazon
`
`GREGORIAN DECL. ISO OPPOSITION
`TO MOTION TO WITHDRAW AS COUNSEL
`
`
`3
`
`CASE NOS.: 5:18-md-02834-BLF;
`5:18-cv-00767-BLF; 5:18-cv-05619-BLF
`
`ATTORNEYS AT LAW
`
`FENWICK & WEST LLP
`
`
`
`

`

`Case 5:18-md-02834-BLF Document 742-1 Filed 04/22/22 Page 5 of 7
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`(as California Rule of Court 3.1182 requires), (ii) confirmed that Robb Evans is not aware of any
`assets in the PersonalWeb estate other than its litigation claims, and (iii) stated that Robb Evans
`has provided “big picture” direction to PersonalWeb’s attorneys about the litigations, but the
`receiver has not had any input concerning discovery matters and has not directed SAM concerning
`compliance with this Court’s orders to PersonalWeb to turn over documents and to answer
`interrogatories. Mr. Bubman did not respond to this email to dispute these facts.
`Two days later, on February 16, 2022, I emailed Mr. Bubman to request that he clarify
`whether Robb Evans has allowed the Insiders to provide any input and direction into the
`PersonalWeb litigations. Mr. Bubman did not respond to that email either.
`Attached as Exhibit 13 is a true and correct copy of this correspondence.
`In early-mid April 2022, Mr. Michael Sherman, counsel for PersonalWeb, twice
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`emailed Mr. Bubman. Mr. Sherman, apparently for the first time, and nine months after the
`deadline for PersonalWeb to comply with the Court’s orders, asked whether Robb Evans would
`secure PersonalWeb’s compliance with this Court’s post-judgment orders. Attached as Exhibit 14
`is a true and correct copy of this correspondence. Mr. Sherman’s emails do not explain SAM’s
`failure to disclose Mr. Bermeister’s interference with the receivership to either this Court or the
`Superior Court for nearly a year. They also do not explain SAM’s nine-month delay in asking for
`the receiver’s assistance in complying with this Court’s orders. And they do not disclose any of
`SAM’s past communications with the receiver concerning the additional loans PersonalWeb
`secured in the meantime from Mr. Bermeister and the Insiders in order to make new payments to
`SAM. At any rate, I am not aware of any response to Mr. Sherman’s April 2022 email
`correspondence to Mr. Bubman.
`On April 7, 2022, Amazon filed its opposition to SAM’s parallel motion to withdraw
`12.
`before the United States Court of Appeals for the Federal Circuit. Attached as Exhibit 15 is a true
`and correct copy of this brief.
`The receiver Robb Evans is based within the state of California and thus subject to
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`this Court’s jurisdiction under its civil contempt authority, which extends to individuals and entities
`in the state of California under Federal Rule of Civil Procedure 4.1(b). Attached as Exhibit 16 is
`GREGORIAN DECL. ISO OPPOSITION
`CASE NOS.: 5:18-md-02834-BLF;
`TO MOTION TO WITHDRAW AS COUNSEL
`5:18-cv-00767-BLF; 5:18-cv-05619-BLF
`
`
`4
`
`ATTORNEYS AT LAW
`
`FENWICK & WEST LLP
`
`
`
`

`

`Case 5:18-md-02834-BLF Document 742-1 Filed 04/22/22 Page 6 of 7
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`a true and correct copy of a print-out of Robb Evans’ website showing that it is based in Alhambra,
`California (last accessed April 19, 2022).
`The documents identified in Exhibit G to the Sherman Declaration (Dkt. 728-4) are
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`within the scope of the Court’s discovery orders and Amazon’s post-judgment requests for
`production, namely, at least:
`
`- Request For Production (“RFP”) No. 3: All documents concerning contracts or
`agreements to which PersonalWeb is or ever has been a party, a beneficiary, a successor
`in interest, or a predecessor in interest. ;
`
`- RFP No. 4: All documents concerning contracts or agreements ever in the possession of
`PersonalWeb. ;
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`- RFP No. 5: All documents concerning contracts or agreements for the benefit of
`PersonalWeb. ;
`
` -
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` RFP No. 12: All documents concerning the authority of any person to act on behalf of
`PersonalWeb (including but not limited to authority to sign or execute documents,
`authority to make payments or transfers, authority to receive or dispose of any item or
`matter, authority to bind, authority to supervise actions, or authority to engage in any
`conduct).
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`- RFP No. 27: All documents concerning any debt collection efforts against or by
`PersonalWeb. ;
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`RFP No. 35: All documents concerning any interests of PersonalWeb in any things of
`value. ; and/or
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`- RFP No. 42: All documents concerning communications with any accountant, auditor,
`tax professional, asset protection advisor, financial institution, creditor, debt collector,
`in relation to PersonalWeb.
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`(See Dkt. 689-2 at 6-7, and 9-11.)
`On February 2, 2022, I spoke by telephone with David Parker, ethics counsel for
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`SAM, who advised me that he believed SAM would have no objection to this Court retaining ju-
`risdiction over SAM for purposes of possibly imposing sanctions even if this Court allows SAM
`to withdraw.
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`
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`GREGORIAN DECL. ISO OPPOSITION
`TO MOTION TO WITHDRAW AS COUNSEL
`
`
`5
`
`CASE NOS.: 5:18-md-02834-BLF;
`5:18-cv-00767-BLF; 5:18-cv-05619-BLF
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`ATTORNEYS AT LAW
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`FENWICK & WEST LLP
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`

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`Case 5:18-md-02834-BLF Document 742-1 Filed 04/22/22 Page 7 of 7
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`I declare under penalty of perjury under the laws of the United Sates that the foregoing is
`true and correct. Executed in San Francisco, California on this 22nd day of April, 2022.
`
`
`
`
`\-------------------------------------------------
`Todd R. Gregorian
`
`GREGORIAN DECL. ISO OPPOSITION
`TO MOTION TO WITHDRAW AS COUNSEL
`
`
`6
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`CASE NOS.: 5:18-md-02834-BLF;
`5:18-cv-00767-BLF; 5:18-cv-05619-BLF
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`ATTORNEYS AT LAW
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`FENWICK & WEST LLP
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