Case 5:18-md-02834-BLF Document 869-1 Filed 04/19/23 Page 1 of 4
`
`
`
`Thomas M. Robins III (State Bar No. 054423)
` trobins@frandzel.com
`Michael Gerard Fletcher (State Bar No. 070849)
` mfletcher@frandzel.com
`Bruce D. Poltrock (State Bar No. 162448)
` bpoltrock@frandzel.com
`FRANDZEL ROBINS BLOOM & CSATO, L.C.
`1000 Wilshire Boulevard, Nineteenth Floor
`Los Angeles, California 90017-2427
`Telephone: (323) 852-1000
`Facsimile: (323) 651-2577
`
`Attorneys for Third Parties BRILLIANT
`DIGITAL ENTERTAINMENT, INC. and
`MONTO HOLDINGS PTY LTD
`
`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
`
`DECLARATION OF ANTHONY
`NEUMANN IN SUPPORT OF BDE AND
`MONTO OPPOSITION TO AMAZON’S
`MOTION TO COMPEL PRODUCTION
`OF DOCUMENTS OF THIRD PARTIES
`BDE/MONTO WITHHELD AS
`PRIVILEGED (Dkt. 860, 862, 864)
`
`
`
`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.
`
`
`
`
`
`Case No. 5:18-md-02834-BLF
`1
`4901103v1 | 101334-0002
`DECLARATION OF ANTHONY NEUMANN IN SUPPORT OF BDE AND MONTO OPPOSITION TO
`AMAZON'S MOTION TO COMPEL
`
`
`
`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
`
`
`FRANDZEL ROBINS BLOOM & CSATO, L.C.
`
`1000 WILSHIRE BOULEVARD, NINETEENTH FLOOR
`
`LOS ANGELES, CALIFORNIA 90017-2427
`
`(323) 852-1000
`
`

`

`Case 5:18-md-02834-BLF Document 869-1 Filed 04/19/23 Page 2 of 4
`
`
`
`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
`
`
`I, Anthony Neumann, declare:
`I am Vice President of Business Development of Brilliant Digital Entertainment,
`1.
`Inc. (“BDE”). I have been employed by BDE since its inception in 1996. Kevin Bermeister is a
`founder and CEO of BDE. If called as a witness I could and would competently testify to the
`following based on my own personal knowledge.
`Since BDE’s inception, Murray Markiles and/or law firms of which he was a
`2.
`partner have provided legal advice and services to BDE and its subsidiaries. After formation of
`Stubbs Alderton Markiles (“SAM”) that firm has provided legal services to BDE and its
`subsidiaries up through the present time.
`In addition to other legal services provided to BDE as BDE’s primary corporate
`3.
`counsel, SAM attorneys, commencing in 2011, drafted documents in connection with the loans by
`BDE and Topodia, now assigned to Monto Holdings Pty, Ltd. (“Monto”), and by Europlay Capital
`Advisors, LLC (“ECA”) and Claria Innovations, LLC (“Claria”) to PersonalWeb Technologies,
`LLC (“PW”), consisting of Promissory Notes, Security Agreements, and other related documents,
`including periodic amendments to same up to and through the 2019 amendments. Mr. Markiles is
`affiliated with ECA and Claria.
`Attorney Jeffrey Gersh has provided legal services to BDE and one or more of its
`4.
`subsidiaries, beginning as early as 2004 -- well before the time he joined the Stubbs Alderton firm
`approximately seven-eight years ago. Once Mr. Gersh was with SAM, he has been working with
`other SAM lawyers representing PW in the Amazon litigation. Moreover, while at SAM, Mr.
`Gersh also performed legal services for BDE and its subsidiaries, including in 2018 with respect to
`a trade mark matter.
`In March 2021, after this Court’s attorneys’ fees award was rendered against PW,
`5.
`the issue arose as to what impact that award could have on the secured lenders’ position vis-à-vis
`PW and the collateral that PW had granted to the secured lenders, including in light of the pending
`appeal of the Court’s summary judgment order to the United States Supreme Court, the anticipated
`appeal of the attorneys’ fees award, and appeals of adverse judgments that were then pending in
`other non-Amazon matters. Mr. Bermeister and Mr. Markiles requested that I contact an attorney
`2
`Case No. 5:18-md-02834-BLF
`4901103v1 | 101334-0002
`DECLARATION OF ANTHONY NEUMANN IN SUPPORT OF BDE AND MONTO OPPOSITION TO
`AMAZON'S MOTION TO COMPEL
`
`
`
`FRANDZEL ROBINS BLOOM & CSATO, L.C.
`
`1000 WILSHIRE BOULEVARD, NINETEENTH FLOOR
`
`LOS ANGELES, CALIFORNIA 90017-2427
`
`(323) 852-1000
`
`

`

`Case 5:18-md-02834-BLF Document 869-1 Filed 04/19/23 Page 3 of 4
`
`
`
`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
`
`
`by the name of Ronald Bender of the Levene, Neale, Bender law firm in Los Angeles to act as
`counsel for BDE, Monto, ECA, and Claria to advise the secured lenders with respect to these
`issues.
`
`As I recall, Mr. Markiles asked Mr. Gersh to assist us in obtaining and reviewing
`6.
`the loan documents that had been prepared by SAM, and be part of discussions regarding same
`with Mr. Bender. Mr. Gersh was a party to and copied on emails with Mr. Bender during the last
`few days of March and the first two days of April 2021. See for example Exhibits C and D,
`previously submitted to the Court. I copied Mr. Gersh and included him on those communications
`by me because I fully believed and understood that he was participating as counsel assisting BDE,
`ECA and Monto in connection with the issues confronting the secured lenders concerning their
`collateral interests and rights. I included Mr. Markiles because ECA and Claria were co-lenders
`and he served as the general counsel and a managing director of ECA.
`On April 2, 2021, Mr. Bender informed me that his firm could not handle the
`7.
`proposed retention and referred me to Craig Welin of Frandzel Robins Bloom & Csato, LC.
`On April 2, 2021 at approximately 5:00 p.m. I sent the email to Mr. Welin that is
`8.
`Exhibit B, previously submitted to the Court. I copied Mr. Gersh and included him on this
`communication and subsequent communications by me because I fully believed and understood
`that he was participating as legal counsel assisting BDE, ECA and Monto in connection with the
`issues confronting the lenders concerning their collateral interests. As can be seen from the body
`of my April 2, 2021, email to Mr. Welin, I identified “[t]he company I work for. . . .” BDE, as “a
`lender to a company that is the subject of an attorney fee award” and I identified Stubbs Alderton
`Markiles as “the law firm we have worked with for decades. . . .”
`Thereafter, Mr. Gersh was included on emails and conference/Zoom calls with Mr.
`9.
`Welin, and his colleagues, Michael Fletcher and Bruce Poltrock, of the Frandzel firm regarding
`the evaluation of the secured lenders’ positions and rights under the loan documents and
`applicable law, including possible strategies for the secured lenders to protect their collateral
`interests, which ultimately led to the filing of the action for the appointment of a receiver over
`PW.
`Case No. 5:18-md-02834-BLF
`3
`4901103v1 | 101334-0002
`DECLARATION OF ANTHONY NEUMANN IN SUPPORT OF BDE AND MONTO OPPOSITION TO
`AMAZON'S MOTION TO COMPEL
`
`
`
`FRANDZEL ROBINS BLOOM & CSATO, L.C.
`
`1000 WILSHIRE BOULEVARD, NINETEENTH FLOOR
`
`LOS ANGELES, CALIFORNIA 90017-2427
`
`(323) 852-1000
`
`

`

`Case 5:18-md-02834-BLF Document 869-1 Filed 04/19/23 Page 4 of 4
`
`From the beginning of Mr. Gersh’s involvement in late March 2021 in the approach
`10.
`to Mr. Bender and in the approach to and communications with the Frandzel firm, I understood
`that Mr. Gersh was acting on behalf of BDE, and by extension, the secured lenders as a member or
`representative of SAM which had been long-time counsel for BDE -- consistent with how I
`introduced the firm to Mr. Welin in my April 2, 2021 email, Exhibit B.
`11.
`Attached hereto is Exhibit 1 is a true and correct copy of the Fourth Amended and
`Restated Secured Revolving Promissory Note between PW and BDE. The same form of
`Promissory Note was executed by PW with Monto, ECA, and Claria.
`12.
`Attached hereto as Exhibit 2 is a true and correct copy of the Pledge and General
`Security Agreement between PW and BDE (the same form was also executed in connection with
`the loans by Monto, ECA and Claria).
`I declare under penalty of perjury under the laws of the United States that the foregoing is
`true and correct.
`Executed April 19, 2023 at Los Angeles County, California.
`
`ANTHONY NEUMANN
`
`Case No. 5:18-md-02834-BLF
`4
`4901103v1 | 101334-0002
`DECLARATION OF ANTHONY NEUMANN IN SUPPORT OF BDE AND MONTO OPPOSITION TO
`AMAZON'S MOTION TO COMPEL
`
`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
`
`FRANDZEL ROBINS BLOOM & CSATO, L.C.
`
`1000 WILSHIRE BOULEVARD, NINETEENTH FLOOR
`
`LOS ANGELES, CALIFORNIA 90017-2427
`
`(323)852-1000
`
`