Case 5:18-md-02834-BLF Document 869-4 Filed 04/19/23 Page 1 of 5
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`1 Thomas M. Robins III (State Bar No. 054423)
`trobins@frandzel.com
`2 Michael Gerard Fletcher (State Bar No. 070849)
`mfletcher@frandzel.com
`3 Bruce D. Poltrock (State Bar No. 162448)
`bpoltrock@frandzel.com
`4 FRANDZEL ROBINS BLOOM & CSA TO, L.C.
`I 000 Wilshire Boulevard, Nineteenth Floor
`5 Los Angeles, California 90017-2427
`Telephone: (323) 852-1000
`6 Facsimile: (323) 651-2577
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`7 Attorneys for Third Parties BRILLIANT
`DIGITAL ENTERTAINMENT, INC. and
`8 MONTO HOLDINGS PTY LTD
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`IN RE: PERSONAL WEB TECHNOLOGIES,
`LLC ET AL., PATENT LITIGATION
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`AMAZON.COM, INC., and AMAZON WEB
`SERVICES, INC.,
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`Plaintiffs
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`v.
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`PERSONAL WEB TECHNOLOGIES, LLC and
`LEVEL 3 COMMUNICATIONS, LLC,
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`Defendants,
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`Case No. 5:18-md-02834-BLF
`
`Case No. 5:18-cv-00767-BLF
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`Case No. 5: l 8-cv-05619-BLF
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`DECLARATION OF MURRAY
`MARKILES 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)
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`PERSONAL WEB TECHNOLOGIES, LLC,
`22 and LEVEL 3 COMMUNICATIONS, LLC,
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`23
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`24
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`v.
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`Plaintiffs,
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`25 TWITCH INTERACTIVE, INC.,
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`Defendant.
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`Case No. 5: 18-md-02834-BLF
`489794lv21101334-0002
`DECLARATION OF MURRAY MARK.ILES IN SUPPORT OF BOE AND MONTO OPPOSITION TO
`AMAZON'S MOTION TO COMPEL
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`

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`Case 5:18-md-02834-BLF Document 869-4 Filed 04/19/23 Page 2 of 5
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`I, Murray Markiles, declare:
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`1.
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`I am an attorney at law. I am a founder of but now a non-participating partner in
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`3 Stubbs Alderton Markiles. I am a managing director, founding member, and general counsel of
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`4 Third Parties Europlay Capital Advisors, LLC ("ECA"), which also acts as the manager of Claria
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`Innovations, LLC ("Claria"). If called as a witness I could and would competently testify to the
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`following based on my own personal knowledge.
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`2.
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`In my position with Claria, I was involved in the original formation of
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`8 PersonalWeb Technologies, Inc., and PersonalWeb Technologies, LLC (as to the latter, "PW"), in
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`9 2010. Prior to formation of PW and SAM, I also provided legal services to BDE. From the time
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`10 SAM was formed as a law firm in2003, it provided legal services to BDE, Monto Holdings Pty,
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`11 Ltd. ("Monto"), and Claria.
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`3.
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`I have known attorney Jeffrey Gersh for probably over 25 years. I am also aware
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`that, prior to his joining SAM seven or eight years ago, Mr. Gersh provided legal services to BDE,
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`14 as well as for Mark Dyne, the founder of ECA and Claria.
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`4.
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`From the time of PW's formation, ECA and Claria were secured lenders of funds to
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`16 PW. (ECA also indirectly holds a 9.791 percent equity interest in PW.) Commencing in 2011,
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`17 BDE and a company called Topodia became lenders to PW as well. Monto took over Topodia's
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`18 position in late 2018. These loans to PW were secured by all of PW' s assets, including the IP
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`19 assets that had been contributed to PW on its formation, and thereafter. SAM attorneys prepared
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`the loan documents for all of the secured lenders to PW, plus an Intercreditor Agreement among
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`the secured creditors.
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`5.
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`PW commenced the current lawsuit against Amazon in early 2018. PW retained
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`23 SAM, as well as other law firms, to represent PW in these matters. Among others in the firm, Mr.
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`24 Gersh was part of the litigation team as to the IP litigation against Amazon.
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`6.
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`In March 2021, this Court issued its award in favor of Amazon and against PW for
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`26 attorney's fees and costs, which PW appealed. There were pending at the same time PW's various
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`27 appeals of other adverse rulings against PW in other IP litigation, being handled by other law
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`firms for PW, including matters pending in the United States Supreme Court on certiorari.
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`Case No. 5:18-md-02834-BLF
`2
`489794Iv2 I !01334-0002
`DECLARATION OF MURRAY MARK.ILES IN SUPPORT OF BDE AND MONTO OPPOSITION TO
`AMAZON'S MOTION TO COMPEL
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`

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`Case 5:18-md-02834-BLF Document 869-4 Filed 04/19/23 Page 3 of 5
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`7.
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`I and my colleagues at ECA, including Mark Dyne, believed that the secured
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`2 creditors needed to evaluate their positions and rights as to the collateral PW had granted to them,
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`including the IP and IP litigation claims, in light of an adverse monetary judgment against PW,
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`4 which could lead to lien claims, including potentially by an execution levy, on the secured
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`5 creditors' collateral.
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`8.
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`I requested that Anthony Neumann, Vice President of BOE, contact Ronald Bender
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`of the Levene Neale Bender firm in Los Angeles with whom I and my colleagues at ECA have had
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`a close relationship over the years, to advise the secured lenders regarding these issues. I also
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`asked Mr. Gersh to coordinate getting the SAM-prepared loan documents to Mr. Bender and to
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`assist in the review of those documents. In making this request of Mr. Gersh, I was doing so in my
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`capacity as a manager of ECA, one of the secured lenders, and with the expectation and
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`understanding that Gersh would be acting on behalf of the secured lenders in responding thereto.
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`9.
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`I was a party to the emails between Mr. Neumann and Mr. Bender from March 28
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`through April 2, 2021, examples of which are attached as Exhibit C, previously lodged with the
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`Court. I was also on the email where Mr. Bender told Mr. Neumann that his firm would not be
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`available and referred Mr. Neumann to the Frandzel Robins Bloom & Csato ("Frandzel") firm. I
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`was also copied on the April 2, 2021, email from Mr. Neumann to Craig Welin ofFrandzel on
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`which Mr. Gersh was copied, that, among other things, introduced SAM as a law firm that had
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`worked with BOE for decades. (See Exhibit B, previously filed.)
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`10.
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`Thereafter, during the month of April 2021, I was a party to and cc'd on many
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`emails that included Mr. Gersh and on Zoom meetings that also involved Mr. Gersh. The emails
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`and meetings discussed subjects relating to protecting the security interests granted to the secured
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`lenders as collateral for their loans, and available strategies concerning protection of those
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`24 collateral interests.
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`11.
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`Those discussions ultimately resulted in the filing of the state court receivership
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`26 action. The goal of the receivership was to protect the secured lenders' interest as lenders secured
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`27 by PW's IP and IP litigation collateral while the appeals were pending. Asking the Superior Court
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`to take over administration of the PW assets comprising the secured creditor's collateral through a
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`Case No. 5:18-md-02834-BLF
`3
`489794lv21 !01334-0002
`DECLARATION OF MURRAY MARKILES IN SUPPORT OF BDE AND MONTO OPPOSITION TO
`AMAZON'S MOTION TO COMPEL
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`

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`Case 5:18-md-02834-BLF Document 869-4 Filed 04/19/23 Page 4 of 5
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`1 court-appointed receiver would allow the pending appeals to be decided. I viewed these actions as
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`2 being for the benefit not only of the secured lenders, but also PW and its other creditors. Had any
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`3 of the IP litigation appeals in this case or the other cases been successful, it would have greatly
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`4 affected the value of the PW IP that was collateral for the loans made by the secured creditors,
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`5 even to the point of exceeding the aggregate unpaid principal and interest on those loans, thereby
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`6 creating value for PW, and for any other of its creditors. It could have also potentially created a
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`7 surplus of value for PW, over and above any outstanding claims, which would have permitted PW
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`to remain solvent.
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`12.
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`During this entire time, it was my expectation and understanding that Mr. Gersh's
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`10 participation in discussions related to the secured loans and the receivership was in the capacity of
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`representing the secured lenders, not PW. As noted, the secured lenders were all long-term
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`12 clients of SAM, and it was very clear that SAM would not be representing PW adversely to the
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`rights of the secured lenders, including concerning enforcement of their loans, and their collateral.
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`14 At no time was I ever informed that SAM, including Mr. Gersh, would represent PW in the
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`receivership proceedings directly adversely to the secured creditors. Indeed, to my knowledge,
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`16 such a representation never occurred.
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`13.
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`In fact, as noted, by late April 2021 PW retained separate legal counsel, attorney
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`18 Ronald Richard, to represent PW in post-judgment proceedings in this Court and concerning the
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`19 secured creditors and their collateral, including performing necessary tasks needed on behalf of
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`20 PW, if any, in the receivership action. I was not aware at that time that Mr. Richards would
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`21 ultimately refuse to appear in court on behalf of PW.
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`14. My understanding that, as of April and May 2021, Gersh and SAM were acting on
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`23 behalf of the secured lenders and not PW was also the subject of various emails, on which I was
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`24 not copied but of which I was made aware. On April 22, 2021, Mr. Gersh wrote an email to
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`25 Amazon's counsel Mr. Gregorian explaining that "We do not represent Pweb in the post judgment
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`26 proceedings." 0kt. # 671-2. Mr. Gersh reiterated that position several times over the next several
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`27 days. See 0kt. # 671-4. Indeed, Mr. Richards, who I understood had been retained by PW,
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`28 specifically instructed Mr. Gersh that he was not authorized to act on behalf of PW in connection
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`Case No. 5: 18-md-02834-BLF
`4
`489794lv2 I 101334-0002
`DECLARATION OF MURRAY MARK.ILES IN SUPPORT OF BDE AND MONTO OPPOSITION TO
`AMAZON'S MOTION TO COMPEL
`
`

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`Case 5:18-md-02834-BLF Document 869-4 Filed 04/19/23 Page 5 of 5
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`I with post-judgment matters. 0kt. # 671-5. Similarly, Mr. Gersh told counsel at Frandzel-who
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`2 had been retained to represent the secured creditors in litigation matters-that he was not able to
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`represent PW in post-judgment matters. 0kt, # 864-6. I was aware of these communications and
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`the retention of Mr. Richards.
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`15.
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`Under the circumstances, it was my understanding that, as of March and April of
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`6 2021 Mr. Gersh did not represent PW in post-judgment or collection matters. Only when the Court
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`7 ordered on May 19, 2021, that SAM would not be allowed to withdraw as PW' s counsel in the
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`8 post-judgment discovery proceedings, did I learn that PW would still be represented by SAM in
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`those proceedings until substitute counsel appeared, albeit under duress and against the stated
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`intent of PW.
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`16.
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`Neither I nor any of my colleagues at ECA provided informed written consent that
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`12 SAM could represent PW adversely to ECA or Claria in connection with any efforts by the
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`secured creditors to collect on PW's debts to the secured creditors or to seek recourse against the
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`14 collateral that secured their loans to PW. To my knowledge, SAM has never undertaken such a
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`representation on behalf of PW.
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`I declare under penalty of perjury under the laws of the United States that the foregoing is
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`true and correct.
`Executed April {1, 2023 at Los Angeles County, California.
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`MURRAY MARK.ILES
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`Case No. 5:18-md-02834-BLF
`5
`489794Iv2 I !01334-0002
`DECLARATION OF MURRAY MARK.ILES IN SUPPORT OF BDE AND MONTO OPPOSITION TO
`AMAZON'S MOTION TO COMPEL
`
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