Case 5:18-md-02834-BLF Document 873 Filed 05/05/23 Page 1 of 15
`
`
`
`TODD R. GREGORIAN (CSB No. 236096)
`tgregorian@fenwick.com
`CHRISTOPHER S. LAVIN (CSB No. 301702)
`clavin@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.
`
`MICHAEL J. BARATZ (PHV)
`mbaratz@steptoe.com
`EMMA S. MARSHAK (PHV)
`emarshak@steptoe.com
`STEPTOE & JOHNSON LLP
`1330 Connecticut Avenue, NW
`Washington, DC 20036
`Telephone: 202.288.8106
`Facsimile: 202.261.0557
`
`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.
`
`
`
`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 THE
`FURTHER SUPPLEMENTAL FEES
`REQUEST OF AMAZON.COM, INC.,
`AMAZON WEB SERVICES, INC., AND
`TWITCH INTERACTIVE, INC.
`
`
`
`
`
`PERSONALWEB TECHNOLOGIES, LLC and
`LEVEL 3 COMMUNICATIONS, LLC,
`Plaintiffs,
`
`v.
`
`TWITCH INTERACTIVE, INC.,
`
`Defendant.
`
`GREGORIAN DECL. ISO
`SUPPLEMENTAL FEES (MAY 2023)
`
`
`
`
`
`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 873 Filed 05/05/23 Page 2 of 15
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`I, Todd R. Gregorian, declare as follows:
`1.
`I am a partner at the law firm Fenwick & West, LLP, attorneys of record for
`Amazon.com, Inc., Amazon Web Services, Inc., and Twitch Interactive, Inc. (collectively
`“Amazon”). I make this declaration in support of Amazon’s further request for supplemental fees
`under 35 U.S.C. § 285. The supplemental fees include the appeal fees that the Court denied without
`prejudice in its April 19, 2021 Order (Dkt. 656); as well as fees that Amazon has incurred since the
`date of its last submission. (Dkt. 853.) I have personal knowledge of the facts set forth herein.
`Amazon’s and Twitch’s Legal Team and Hourly Rates
`2.
`Fenwick & West LLP is a firm of approximately 500 attorneys which specializes in
`providing legal services for leading technology companies, start-ups, and others on the edge of
`innovation. Fenwick enjoys a reputation as one of the preeminent technology and intellectual
`property firms in the United States. I am a partner at Fenwick & West and have been a practicing
`attorney for over 18 years, specializing in intellectual property litigation.
`3.
`A number of attorneys and paralegal staff performed significant work on this matter
`over the two years since Amazon’s last fee request. As detailed below, the hourly rates charged by
`the attorneys who worked on this matter are consistent with the prevailing market rates for attorneys
`with comparable skill, qualifications, experience, and reputations. The hourly rates charged by the
`paralegals are also consistent with the prevailing market rates for paralegals with comparable skill,
`qualifications, and experience. The labor of these individuals contributed to the final attorney work
`product billed to the client.
`4.
`Fenwick regularly adjusts its rates to keep pace with the markets in which it works.
`The 2021 and 2022 billing rates reported below reflect pre-invoice discounts from Fenwick’s then-
`current market rates, as well as a percentage discount that Amazon receives on its monthly invoices
`for this matter. (See Dkt. 649, ¶8.)
`5.
`To ensure the reasonableness of the lodestar figure, Amazon has taken the following
`approach. For timekeepers whose rates the Court reviewed as part of a previous fee request,
`Amazon is requesting reimbursement for time at the rates that the Court has already approved for
`the 2018-2020 time period. For timekeepers who joined the matter during 2021-2023, Amazon is
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`GREGORIAN DECL. ISO
`SUPPLEMENTAL FEES (MAY 2023)
`
`
`
`1
`
`CASE NOS.: 5:18-md-02834-BLF;
`5:18-cv-00767-BLF; 5:18-cv-05619-BLF
`
`ATTORNEYS AT LAW
`
`FENWICK & WEST LLP
`
`
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`

`

`Case 5:18-md-02834-BLF Document 873 Filed 05/05/23 Page 3 of 15
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`requesting reimbursement for time at their 2021 discounted rates. The result is that Amazon’s
`supplemental fee request is substantially lower than the full amount it reasonably incurred.
`6.
`The Fenwick attorneys and paralegals who worked more than a nominal amount on
`this matter were previously identified in the Declaration of Todd R. Gregorian in Support of Motion
`of Amazon.com, Inc., Amazon Web Services, Inc., and Twitch Interactive, Inc., for Attorney Fees
`and Costs (Dkt. 592-1 at 1-5) or, for new timekeepers, are identified below along with a summary
`of their experience and qualifications. Additionally, copies of the attorneys’ biographies as they
`appear on the Fenwick website and in Fenwick’s marketing materials, including lists of
`representative engagements, are attached as Exhibit 1.
`a. Matthew Becker: Mr. Becker, a litigation associate at Fenwick, is a member
`in good standing with the California State Bar and has practiced intellectual property litigation in
`the State of California since 2013. Mr. Becker’s rate on this matter was $743 per hour for all work
`performed in 2021, $818 per hour for all work performed in 2022, and $1,075 per hour for all work
`performed in 2023. Mr. Becker’s responsibilities on this case included legal research, appellate
`work, and motion practice.
`b. Christopher Lavin: Mr. Lavin, a litigation associate at Fenwick, is a
`member in good standing with the California State Bar and has practiced intellectual property
`litigation in the State of California since 2014. Mr. Lavin’s rate on this matter was $743 per hour
`for all work performed in 2021, $818 per hour for all work performed in 2022, and $1,075 for all
`work performed in 2023. Mr. Lavin’s responsibilities on this case included case management, legal
`research, motion practice, appellate work, and fact discovery.
`c. Deena Feit: Ms. Feit, a litigation associate at Fenwick, is a member in good
`standing with the bars of the Commonwealth of Massachusetts and Washington State and has
`practiced intellectual property litigation in the State of Washington since 2022. Ms. Feit’s rate on
`this matter was $714 per hour for all work performed in 2021, $805 per hour for all work performed
`in 2022, and $1,075 per hour for all work performed in 2023. Ms. Feit’s responsibilities on this
`case included legal research, appellate work, and case management.
`
`GREGORIAN DECL. ISO
`SUPPLEMENTAL FEES (MAY 2023)
`
`
`
`2
`
`CASE NOS.: 5:18-md-02834-BLF;
`5:18-cv-00767-BLF; 5:18-cv-05619-BLF
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`Case 5:18-md-02834-BLF Document 873 Filed 05/05/23 Page 4 of 15
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`d. Wenbo Zhang: Ms. Zhang, a litigation associate at Fenwick, is a member
`in good standing with the New York and Washington State Bars and has practiced intellectual
`property litigation in the State of New York since 2018, and in the State of Washington since 2022.
`Ms. Zhang’s rate on this matter was $623 per hour for all work performed in 2021, $743 per hour
`for all work performed in 2022, and $1,030 per hour for all work performed in 2023. Ms. Zhang’s
`responsibilities on this case included case management, legal research, motion practice, and fact
`discovery.
`
`e. Su Li: Ms. Li, a litigation associate at Fenwick, is a member in good
`standing with the California State Bar and has practiced intellectual property litigation in the State
`of California since 2020. Ms. Li’s rate on this matter was $419 per hour for all work performed in
`2021, $461 per hour for all work performed in 2022, and $735 per hour for all work performed in
`2023. Ms. Li’s responsibilities on this case included legal research and motion practice.
`f. Alyssa Crooke: Alyssa Crooke, a litigation associate at Fenwick, is a
`member in good standing with the California State Bar and has practiced intellectual property
`litigation in the State of California since 2021. Ms. Crooke’s rate on this matter was $419 per hour
`for all work performed in 2021, $461 per hour for all work performed in 2022, and $735 per hour
`for all work performed in 2023. Ms. Crooke’s responsibilities on this case included legal research,
`motion practice, and fact discovery.
`g. Adrian Rios: Mr. Rios, a litigation associate at Fenwick, is a member in
`good standing with the California State Bar and has practiced intellectual property litigation in the
`State of California since 2021. Mr. Rios’ rate on this matter was $419 per hour for all work
`performed in 2021, $461 per hour for all work performed in 2022, and $735 per hour for all work
`performed in 2023. Mr. Rios’ responsibilities on this case included legal research and motion
`practice.
`
`h. Michelle Waziri: Ms. Waziri, a staff attorney at Fenwick, is a member in
`good standing with the California State Bar and has practiced commercial complex litigation in the
`State of California since 2006. Ms. Waziri’s rate on this matter was $361 per hour for all work
`
`GREGORIAN DECL. ISO
`SUPPLEMENTAL FEES (MAY 2023)
`
`
`
`3
`
`CASE NOS.: 5:18-md-02834-BLF;
`5:18-cv-00767-BLF; 5:18-cv-05619-BLF
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`Case 5:18-md-02834-BLF Document 873 Filed 05/05/23 Page 5 of 15
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`performed in 2021, $324 per hour for all work performed in 2022, and $560 per hour for all work
`performed in 2023. Ms. Waziri’s responsibilities on this case included fact discovery.
`7.
`As PersonalWeb was frustrating execution on the Court’s judgment and then entered
`receivership, Amazon retained the services of counsel specializing in judgment enforcement,
`namely Steptoe & Johnson LLP. When PersonalWeb appealed the Court’s order on the Kessler
`doctrine to the Supreme Court, Amazon retained the services of counsel specializing in Supreme
`Court practice, namely Paul Hastings LLP. Details about these firms and the timekeepers who
`worked on the matter are provided in additional declarations submitted herewith.
`Billing Rates and Timekeepers for the Further Supplemental Fee Request
`8.
`Amazon below submits a chart listing the timekeepers for this matter, comprising
`(i) original timekeepers, who billed in this matter between 2018-2021 and whose billing rates were
`previously submitted to—and approved by—the Court, and (b) new timekeepers, who have not
`previously billed to this matter between 2018-2021 and whose billing rates have not been
`previously submitted to the Court.
`9.
`As discussed above, for any original timekeepers, Amazon has used the same billing
`rate that the Court has previously approved for them in the prior fees submission, even though the
`billing rates for each original timekeeper has in fact increased year-over-year through the current
`year 2023. For any new timekeepers, Amazon has used their 2021 discounted billing rate for any
`hours billed in 2022 or 2023, even though the billing rates for each new timekeeper has increased
`year-over-year through the current year 2023.
`10.
`The result of this adjustment to the billing rates for both original timekeepers and
`new timekeepers is that the total amount of fees that Amazon requests is less than what Amazon
`actually paid or was billed for the work and, thus, the calculations of fees are conservative.
`11.
`In addition to adjusting the billing rates, Amazon has adjusted the timekeepers for
`which it is seeking fees. Amazon is not seeking fees for any timekeepers that billed less than 30
`hours during the 2021-2023 period, further making the calculations of its requested fees
`conservative. This adjustment eliminated 30 timekeepers billing 175.9 hours for a total of
`$117,039.78.
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`GREGORIAN DECL. ISO
`SUPPLEMENTAL FEES (MAY 2023)
`
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`4
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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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`Case 5:18-md-02834-BLF Document 873 Filed 05/05/23 Page 6 of 15
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`
`
`Hours Billed
`on Matter
`Excluding
`Fees Appeal
`(March 2021-
`March 2023)
`36.6
`
`Hours Billed
`on
`Fee Appeal
`(March 2021-
`March 2023)
`
`Previously
`Approved
`Rate
`(2018-
`2021)
`
`Requested
`Rate
`(2021-2023)
`
`Years of
`Experience
`(2023)
`
`3.3
`
`$905.95
`
`$905.95
`
`28 years
`
`645.8
`
`110.2
`
`121.5
`
`89.6
`
`1682.4
`
`166.4
`
`194.9
`
`66.5
`
`125.9
`
`37.7
`
`62
`
`287.7
`
`108.6
`
`261.3
`
`255.3
`
`124.5
`
`$649.27
`
`$649.27
`
`18 years
`
`-
`
`-
`
`-
`
`75.9
`
`138.6
`
`-
`
`-
`
`-
`
`-
`
`-
`
`-
`
`-
`
`-
`
`-
`
`35.5
`
`$406.85
`
`-
`
`-
`
`41.9
`
`-
`
`-
`
`-
`
`-
`
`-
`
`-
`
`-
`
`$955.00
`
`21 years
`
`$1,500.00
`
`29 years
`
`$743.00
`
`10 years
`
`$743.00
`
`$714.00
`
`$745.00
`
`$623.00
`
`$406.85
`
`$725.00
`
`$419.00
`
`$419.00
`
`$419.00
`
`$361.00
`
`9 years
`
`8 years
`
`7 years
`
`6 years
`
`6 years
`
`3 years
`
`3 years
`
`2 years
`
`2 years
`
`17 years
`
`44.2
`
`$342.16
`
`$342.16
`
`31 years
`
`Billing
`Attorney
`
`J. David
`Hadden
`Partner
`Todd
`Gregorian
`Partner
`Michael
`Baratz
`Partner
`Stephen
`Kinnaird
`Partner
`Matthew
`Becker
`Associate
`Chris Lavin
`Associate
`Deena Feit
`Associate
`Emma
`Marshak
`Associate
`Wenbo Zhang
`Associate
`Chieh Tung
`Associate
`Tor Tarantola
`Associate
`Su Li
`Associate
`Alyssa
`Crooke
`Associate
`Adrian Rios
`Associate
`Michelle
`Waziri
`Staff Attorney
`Robert
`Winant
`Paralegal
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`GREGORIAN DECL. ISO
`SUPPLEMENTAL FEES (MAY 2023)
`
`
`
`5
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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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`Case 5:18-md-02834-BLF Document 873 Filed 05/05/23 Page 7 of 15
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`$344.74
`
`$344.74
`
`18 years
`
`Lawrence
`Gallwas
`Paralegal
`12.
`Amazon has separated the hours and total billing to the fee award appeal because
`that appeal is still pending and not been resolved yet. This is a total of 481.9 hours for a total of
`$292,505.92 (using previously approved billing rates or 2021 discounted billing rates). Amazon
`requests that the Court award these fees, but it understands that the Court’s previous approach to
`fees on appeal was to deny the request without prejudice to Amazon requesting those fees again if
`it succeeds in the appeal. (Dkt. 656 at 2-3.) Amazon has segregated the fees for this purpose.
`Reasonableness of Fenwick’s Hourly Rates
`13.
`The Court has already found Fenwick’s billing rates for the original timekeepers to
`be reasonable and approved them for the previous fees submissions. (See Dkt. 648 at 26; Dkt. 592-
`1 at 5-6.)
`14.
`Further, in my role, I am familiar with Fenwick’s business and billing practices, and
`I am generally familiar with the rates comparable firms charge for patent litigation in the Northern
`District of California. Fenwick sets its hourly billing rates to be competitive with rates generally
`charged by other full-service law firms for attorneys of similar experience. Fenwick attorneys
`routinely appear in patent litigation matters in the Northern District of California, including high-
`stakes patent litigation like this multidistrict litigation. Printouts from Docket Navigator showing
`appearances by Fenwick in patent litigation matters in the Northern District of California since
`2018 are attached as Exhibit 2. In my opinion, the billable rates charged by the specific attorneys
`and paralegals on this case are reasonable for their respective levels of expertise and as compared
`to other law firms with similar experience in the San Francisco Bay Area.
`15.
`Fenwick provides comprehensive legal services to national and international
`technology and life sciences companies. Fenwick has approximately 500 attorneys practicing in
`offices in Mountain View, San Francisco, and Santa Monica, California, in Seattle, Washington, in
`Washington, D.C., and in New York, New York. Fenwick is nationally-recognized for its handling
`
`111.1
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`18
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`GREGORIAN DECL. ISO
`SUPPLEMENTAL FEES (MAY 2023)
`
`
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`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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`

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`Case 5:18-md-02834-BLF Document 873 Filed 05/05/23 Page 8 of 15
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`of, among other things, intellectual property litigation. For example, over the past year Fenwick
`was:
`
` Selected as one of the top IP practices nationally as well as in California, New York,
`and Washington by Managing Intellectual Property (2022);
` Ranked among the top firms for patent litigation and patent prosecution (including
`reexaminations and post-grant proceedings) by The Legal 500 (2022);
` Recommended among the top patent litigation shops in California, New York, and
`Washington by IAM Patent 1000 (2022);
` Selected as one of the top intellectual property practices in the country by
`Benchmark Litigation (2023);
` Named The Best Performing Law Firm Representing Defendants by Patexia (2023);
`and
` Fenwick attorneys J. David Hadden and Todd R. Gregorian were respectively
`ranked first and second-best individual attorneys on The Best-Performing Patent
`Litigators Representing Defendants by Patexia (2023).
`
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`16.
`Other types of evidence routinely considered by the federal courts in assessing the
`reasonableness of fees support the conclusion that Fenwick’s fees in this matter were reasonable:
`a.
`Multiple California federal courts have found Fenwick’s rates to be
`reasonable for patent and other IP cases of similar or lesser complexity than this MDL proceeding.
`IPVX Patent Holdings, Inc. v. Voxernet LLC, 2014 WL 5795545, at *7 (N.D. Cal. Nov. 6, 2014)
`(plaintiff conceded Fenwick’s rates “were reasonable”); Netbula, LLC v. Chordiant Software, Inc.,
`2010 WL 11575580, at *5 (N.D. Cal. Dec. 17, 2010) (“[Fenwick’s] rates are comparable to other
`full service firms in the Bay Area and are reasonable.”); Yue v. Storage Tech. Corp., 2008 WL
`11256331, at *5 (N.D. Cal. Aug. 6, 2008) (report and recommendation) (same), adopted by 2008
`WL 4185835 (N.D. Cal. Sept. 5, 2008); Perfect 10, Inc. v. Giganews, Inc., 2015 WL 1746484, at
`*16-21 (C.D. Cal. Mar. 24, 2015) (Fenwick’s rates were “reasonable and w[ere] comparable to
`prevailing market rates for attorneys of similar experience, skill, and reputation in similarly
`complex litigation”), aff’d, 847 F.3d 657 (9th Cir. 2017); Jones v. Corbis Corp., 2011 WL 4526084,
`at *1-2 (C.D. Cal. Aug. 24, 2011).
`b.
`Fenwick’s fees are also in line with the survey conducted by AIPLA. See
`Phigenix, Inc. v. Genentech Inc., 2019 WL 2579260, at *11 (N.D. Cal. June 24, 2019) (“In
`
`GREGORIAN DECL. ISO
`SUPPLEMENTAL FEES (MAY 2023)
`
`
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`7
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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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`Case 5:18-md-02834-BLF Document 873 Filed 05/05/23 Page 9 of 15
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`intellectual property cases, federal courts routinely rely on [AIPLA] economic survey results
`published every other year.”) (citations omitted). AIPLA conducts a biennial economic survey that
`includes a survey of individual billing rates for representative IP law services and total costs of
`patent infringement litigation inclusive of discovery, motions, and claim construction. Relevant
`excerpted portions from the 2021 survey are attached hereto as Exhibit 3 [Tables I-37; I-48; I-49;
`F-26].
`
`i. Data from the 2021 survey, analyzing 2020 rates, shows that Fenwick’s
`rates charged in this action are consistent with the range of average
`hourly billing rates for private law firms in the San Francisco
`Consolidated Metropolitan Statistical Area (CMSA). In 2020, the
`average hourly billing rate in the San Francisco CMSA for partners was
`$665, the median rate was $595, the rate for the third quartile was $903,
`and the rate for the 90th percentile was unreported. Id. I-37. In 2020,
`the average hourly billing rate in the San Francisco CMSA for associates
`was $737, the median rate was $910, the rate for the third quartile was
`unreported, and the rate for the 90th percentile was again unreported. Id.
`I-49.
`ii. Fenwick’s fees also fall within the range of overall rates charged for
`intellectual property litigation. The average maximum billing rate for IP
`work in the San Francisco CMSA was $850, the median rate was $695,
`and the rate for the third quartile was $1,240. Id. F-26.
`Explanation of the Monthly Invoices
`Exhibit A is a copy of all monthly Fenwick invoices to Amazon for work performed
`17.
`on this matter from March 2021 through March 2023, reflecting the work of each timekeeper at
`Fenwick who billed to this matter during that time period. The invoices for January through March
`2023 are draft invoices. The time entries and total amounts billed, however, accurately reflect the
`amount Fenwick expects to bill to the client.
`
`GREGORIAN DECL. ISO
`SUPPLEMENTAL FEES (MAY 2023)
`
`
`
`8
`
`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 873 Filed 05/05/23 Page 10 of 15
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`
`18.
`Fenwick has made the following redactions from the invoices: (1) bank account
`information required for payment of fees; and (2) non-taxable costs that Amazon is not seeking as
`part of its request. Category (1) is redacted in black; category (2) is redacted in blue.
`19.
`In total, Amazon incurred $3,896,112.40 in fees for Fenwick, Steptoe, and Paul
`Hastings’ work between March 2021 and March 2023. However, Amazon requests only
`$292,505.92 for the pending appeal of the fee award plus $2,838,832.31 for other case work, for a
`total of $3,131,338.23. Between (i) for original timekeepers, using the previously approved lesser
`billing rates or, for new timekeepers, using the lesser 2021 discounted billing rates (rather than
`higher 2022 or 2023 billing rates) and (ii) excluding de minimis timekeepers, Amazon is reducing
`its fees incurred and invoiced by $764,774.17. This is an almost 20% voluntary reduction of fees—
`making Amazon’s request conservative.
`20.
`The Court previously declined to award Amazon fees for costs relating to the
`Federal Circuit appeal on claim construction and non-infringement, but without prejudice to
`Amazon requesting those fees again if it was successful in the appeal. (Dkt. 656 at 2-3.) The appeal
`by PersonalWeb on these issues was unsuccessful and this Court’s order was affirmed. See In re
`PersonalWeb Techs. LLC, No. 2020-1566, 2021 WL 3557196 (Fed. Cir. Aug. 12, 2021).
`Accordingly, Amazon renews its request to be compensated for 169.7 hours in work for a total of
`$106,291.43.
`By way of this submission, Amazon requests in fees: $3,131,338.23 plus
`21.
`$106,291.43 of its previous appeal fees, for total fees of: $3,237,629.66.
`Chart of Major Tasks and Associated Fees Incurred
`22.
`A chart of each attorney’s time for each category of tasks performed in this case
`during the March 2021 through March 2023 time period is attached as Exhibit B. A summary of
`each category is provided below.
`a. “Federal Appeals (Fees)” includes tasks performed defending against
`PersonalWeb’s serial appeals in this matter, including the Federal Circuit appeal of the Court’s fee
`award. They include legal research and preparation of appeal briefs and other court submissions,
`client correspondence, and related conferences.
`
`GREGORIAN DECL. ISO
`SUPPLEMENTAL FEES (MAY 2023)
`
`
`
`9
`
`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 873 Filed 05/05/23 Page 11 of 15
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`b. “Federal Appeals (Other)” includes tasks performed defending against
`PersonalWeb’s serial appeals in this matter, including the Federal Circuit and Supreme Court
`appeals of the Court’s preclusion rulings, and the Federal Circuit appeals of the Court’s non-
`infringement summary judgment ruling. They include legal research and preparation of appeal
`briefs and other court submissions, client correspondence, and related conferences.
`c. “Post-Judgment Enforcement” includes tasks performed in this Court
`attempting to enforce the judgment and address PersonalWeb’s evasions, including post-judgment
`discovery, subpoenas to related third-party entities, motion practice, case management conference
`statements, opposing Stubbs Alderton & Markiles LLP’s numerous motions to withdraw as
`counsel, other pleadings, court appearances, and including team conferences to discuss strategy,
`correspondence with the clients, review of PersonalWeb and its investors’ document productions,
`and preparation of court submissions.
`d. “State Court Judgment Enforcement” includes tasks performed at the
`California Superior Court and Court of Appeal attempting to enforce the judgment, including
`appeal of the original denial of intervention, petition for writ of supersedeas (motion for stay),
`preparation of the complaint-in-intervention, preparation of counterclaims, a successful motion to
`compel the receiver to share information about the receivership with Amazon, and other pleadings,
`the appellate oral argument and Superior Court appearances, and including team conferences to
`discuss strategy, correspondence with the clients, document review, and preparation of other court
`submissions.
`
`e. “Case Management” includes team conferences to discuss strategy and
`correspondence with the clients, Amazon customers, and joint defense counsel that are not clearly
`allocatable to a single one of the above categories; drafting a joint statement regarding resolution
`of the matter and a proposed judgment in response to the Court’s second summary judgment order;
`docketing and calendar review; and filing any required forms with the Federal Circuit and
`responding to notices from the clerk. These fees were necessary to achieve final resolution of this
`matter for not only Amazon, but all the indemnified Amazon customers and third parties
`represented by joint defense counsel. The Court has already held that PersonalWeb’s conduct in
`
`GREGORIAN DECL. ISO
`SUPPLEMENTAL FEES (MAY 2023)
`
`
`
`10
`
`CASE NOS.: 5:18-md-02834-BLF;
`5:18-cv-00767-BLF; 5:18-cv-05619-BLF
`
`1 2 3 4 5 6 7 8 9
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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 873 Filed 05/05/23 Page 12 of 15
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`this highly complex matter “support[s] Amazon’s need for significant case management efforts.”
`(Dkt. 648 at 12.)
`23. Where time entries that involved more than one task, the team reviewed the entries
`allocated the time based on their good faith estimate of the time spent per task. At the Court’s
`request, Amazon can provide a copy of the supplemental spreadsheet showing all such allocations.
`24.
`The final amount provided for each category above was calculated by applying the
`respective timekeeper’s previously approved billing rate or 2021 discounted billing rate against
`each line item on the invoices, resulting at times in fractional cents.
`Amazon also incurred $193,605.69 in non-taxable costs. These costs are related to
`25.
`litigating this case, such as data hosting fees (including fees required for hosting and reviewing
`documents as part of the discovery dispute over the attorney fee motion); chambers copies;
`transcript order fees; and copying fees. The specific charges appear in Fenwick, Steptoe, or Paul
`Hastings’ monthly invoices identified above with this declaration or the additional declarations
`submitted herewith. A summary of the costs for which Amazon requests reimbursement is included
`as Exhibit C.
`
`Amazon’s Recoverable Judgment Enforcement Fees Include Fees
`Incurred Addressing PersonalWeb’s Fraudulent State Court Receivership
`
`26.
`Amazon seeks fees that it incurred in the parallel California Second District
`Appellate and California Superior Court actions attempting to enforce the Court’s judgment. I
`provide the following information as background in support of that request. Documentary evidence
`from which the following facts are drawn appears in the record at Dkt. 871-7.
`27.
`PersonalWeb’s principals structured their “investment” in PersonalWeb as secured
`debt to ensure that they would never have to pay any unwanted creditors. The scheme worked as
`follows. The investors1 never capitalized PersonalWeb for its anticipated business. Instead, they
`paid expenses as they arose, and promptly removed and distributed to themselves the proceeds of
`
`1 The investors include Brilliant Digital Entertainment, Inc., Claria Innovations, LLC (“Claria”),
`Europlay Capital Advisors, LLC (“ECA”), and Monto Holdings Pty Ltd., and their principals
`include Kevin Bermeister, Anthony Neumann, and Murray Markiles, the individuals who
`personally directed PersonalWeb’s litigation against Amazon and its customers.
`
`
`GREGORIAN DECL. ISO
`SUPPLEMENTAL FEES (MAY 2023)
`
`
`
`11
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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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`Case 5:18-md-02834-BLF Document 873 Filed 05/05/23 Page 13 of 15
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`any litigation settlements. As they did so, they recorded these as increases or decreases to the
`outstanding loan balance. But they did not expect “repayment,” as such. Instead, they repeatedly
`extended the loan maturity dates so that they would not come due.2
`28.
`The result is that the investors could keep PersonalWeb perpetually insolvent—
`unable to pay creditors unless they specifically chose to do so. The investors could also at any
`point use their secured loans to claim priority to whatever assets PersonalWeb retained, leaving
`unsecured creditors with nothing. At the time PersonalWeb sued more than 85 Amazon customers
`on legally barred claims, PersonalWeb had only $347,000 in the bank yet “owed” these investors
`$8.2 million. And during the case, PersonalWeb was paying as much as $400,000 per month to its
`lawyers, yet Kevin Bermeister testified that it would not be able pay an attorney fee award without
`seeking additional “investment” from himself and others.
`29.
`As soon as Amazon inquired about securing this Court’s judgment, Mr. Murray
`Markiles, who is PersonalWeb’s corporate counsel and a 25% owner of ECA and the managing
`agent for both ECA and Claria, announced “it begins.” He then began pressing to trigger the asset
`protection scheme. The investors demanded that PersonalWeb immediately repay the loans in full
`even though they were not scheduled to mature for over a year. They directed PersonalWeb to
`“refuse” to pay. Then in California Superior Court they filed to place PersonalWeb in receivership
`for their benefit and obtain a preliminary injunction that prevented any other creditor from
`collecting. In their filings, they presented themselves as arms’ length creditors, concealing from
`the Superior Court the fact that they already own and control PersonalWeb (and thus had personally
`caused its “refusal” to pay, and had no legitimate need for a receiver to manage the estate for them),
`and that PersonalWeb had a legitimate $5.4 million creditor in Amazon. After the federal judgment,
`plaintiffs also quickly rewrote their secured loan agreements to specify that the patent litigations
`against Amazon, its customers, and other prominent technology companies, were all “collateral”
`securing the loans. The resulting receivership allowed thus the investors to continue to fund those
`litigations against Amazon and others without paying or securing the judgment.
`
`2 These transactions bear other hallmarks of an attempt to defraud creditors. The investors signed
`an intercreditor pari passu agreement, for example, without any apparent reason why supposedly
`independent parties would agree to equal priority on secured loans provided at differ