Case 5:18-md-02834-BLF Document 880 Filed 05/23/23 Page 1 of 15
`
`
`
`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
`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.
`
`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
`NOTICE OF MOTION AND
`MEMORANDUM OF POINTS AND
`AUTHORITIES OF AMAZON.COM,
`INC., AMAZON WEB SERVICES, INC.,
`AND TWITCH INTERACTIVE, INC. IN
`SUPPORT OF FURTHER
`SUPPLEMENTAL FEES REQUEST
`
` Date: October 5, 2023
` Time: 9:00 a.m.
` Place: Courtroom 3, 5th Floor
` Judge: Hon. Beth L. Freeman
`
`
`MOT. AND MPA ISO
`SUPP. FEES (MAY 2023)
`
`
`
`
`
`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
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ATTORNEYS AT LAW
`
`FENWICK & WEST LLP
`
`
`
`
`

`

`Case 5:18-md-02834-BLF Document 880 Filed 05/23/23 Page 2 of 15
`
`
`
`TABLE OF CONTENTS
`
`Page
`NOTICE OF MOTION AND MOTION FOR SUPPLEMENTAL ATTORNEY FEES............... 1
`MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 1
`I.
`THE REQUESTED FEES ARE RECOVERABLE. .......................................................... 2
`A.
`The Court should award Amazon fees for the multiple meritless appeals. ............. 3
`B.
`The Court should award fees that Amazon incurred on the fee award. .................. 5
`C.
`The Court should award fees for attempting to enforce the judgment. ................... 6
`1.
`The Court should award fees for PersonalWeb’s judgment
`avoidance tactics in this Court. ................................................................... 6
`The Court should award fees for PersonalWeb’s attempt to use a
`separate state court proceeding to undermine this Court’s
`jurisdiction over its judgment. .................................................................... 7
`THE REQUESTED FEES ARE REASONABLE. ........................................................... 10
`
`2.
`
`II.
`
`
`
`MOT. AND MPA ISO
`SUPP. FEES (MAY 2023)
`
`
`
`i
`
`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
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ATTORNEYS AT LAW
`
`FENWICK & WEST LLP
`
`
`
`
`

`

`Case 5:18-md-02834-BLF Document 880 Filed 05/23/23 Page 3 of 15
`
`
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases:
`
`Amneal Pharms. LLC v. Almirall, LLC,
`960 F.3d 1368 (Fed. Cir. 2020) ........................................................................................... 8
`
`Berti v. Santa Barbara Beach Props.,
`145 Cal. App. 4th 70 (2007) ............................................................................................... 8
`
`Carnes v. Zamani,
`488 F.3d 1057 (9th Cir. 2007) ............................................................................................. 8
`
`Central Soya Co. v. Geo. A. Hormel & Co.,
`723 F.2d 1573 (Fed. Cir. 1983) ........................................................................................... 5
`
`Fox v. Vice,
`563 U.S. 826 (2011) ............................................................................................................ 2
`
`G & G Fire Sprinklers, Inc. v. Bradshaw,
`156 F.3d 893 (9th Cir. 1998), vacated on other grounds, sub nom.
`Bradshaw v. G & G Fire Sprinklers, Inc., 526 U.S. 1061 (1999) ....................................... 8
`
`Goodyear Tire & Rubber Co. v. Haeger,
`581 U.S. 101 (2017) ............................................................................................................ 2
`
`Gulfstream III Assocs., Inc. v. Gulfstream Aerospace Corp.,
`995 F.2d 414 (3d Cir. 1993) ................................................................................................ 8
`
`Hensley v. Eckerhart,
`461 U.S. 424 (1983) ............................................................................................................ 8
`
`In re PersonalWeb Techs. LLC,
`961 F.3d 1365 (Fed. Cir. 2020) ........................................................................................... 4
`
`In re PersonalWeb Techs. LLC,
`No. 2020-1566, 2021 WL 3557196 (Fed. Cir. Aug. 12, 2021) ........................................... 5
`
`In re Rembrandt Techs. LP Pat. Litig.,
`899 F.3d 1254 (Fed. Cir. 2018) ........................................................................................... 2
`
`Ketchum v. Moses,
`24 Cal. 4th 1122 (2001) ...................................................................................................... 8
`
`Levi Strauss & Co. v. Abercrombie & Fitch Trading Co.,
`719 F.3d 1367 (Fed. Cir. 2013) ........................................................................................... 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
`
`ATTORNEYS AT LAW
`
`FENWICK & WEST LLP
`
`
`
`
`MOT. AND MPA ISO
`SUPP. FEES (MAY 2023)
`
`
`
`ii
`
`CASE NOS.: 5:18-md-02834-BLF;
`5:18-cv-00767-BLF; 5:18-cv-05619-BLF
`
`

`

`Case 5:18-md-02834-BLF Document 880 Filed 05/23/23 Page 4 of 15
`
`
`
`Mathis v. Spears,
`857 F.2d 749 (Fed. Cir. 1988) ............................................................................................. 8
`
`Monolithic Power Sys., Inc. v. O2 Micro Int’l Ltd.,
`726 F.3d 1359 (Fed. Cir. 2013) ........................................................................................... 7
`
`Octane Fitness, LLC v. ICON Health & Fitness, Inc.,
`572 U.S. 545 (2014) ............................................................................................................ 9
`
`PersonalWeb Techs., LLC v. Patreon, Inc.,
`142 S. Ct. 2707 (2022) ........................................................................................................ 4
`
`PPG Indus., Inc. v. Celanese Polymer Specialties Co.,
`840 F.2d 1565 (Fed. Cir. 1988) ........................................................................................... 8
`
`Statutes & Rules:
`
`35 U.S.C. § 285 ...................................................................................................................... passim
`
`Cal. Code Civ. P. § 685.040 ............................................................................................................ 8
`
`Other Authorities:
`
`18A Charles A. Wright, Fed. Prac. and Proc. § 4435 (2d ed. 2002) ............................................. 4
`
`
`MOT. AND MPA ISO
`SUPP. FEES (MAY 2023)
`
`
`iii
`
`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
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ATTORNEYS AT LAW
`
`FENWICK & WEST LLP
`
`
`
`

`

`Case 5:18-md-02834-BLF Document 880 Filed 05/23/23 Page 5 of 15
`
`
`
`NOTICE OF MOTION AND MOTION FOR SUPPLEMENTAL ATTORNEY FEES
`TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
`
`PLEASE TAKE NOTICE that, on October 5, 2023, at 9:00 a.m. at the United States District
`Court for the Northern District of California, 280 South First Street, San Jose, California, in the
`courtroom of the Honorable Beth L. Freeman, Amazon.com, Inc., Amazon Web Services, Inc., and
`Twitch Interactive, Inc. (collectively, “Amazon”) will and hereby do move the Court for an order
`granting Amazon its further supplemental attorney fees and non-taxable costs. Amazon bases its
`motion on this notice, the accompanying memorandum of points and authorities, the supporting
`declarations of Todd R. Gregorian, Steven K. Davidson, and Stephen B. Kinnaird, and their
`accompanying exhibits, all pleadings and documents on file in this action, and such other materials
`or argument as the Court may consider.
`MEMORANDUM OF POINTS AND AUTHORITIES
`On March 20, 2020, Amazon moved for “the full amount of attorney fees and non-taxable
`
`costs that [it] incurred in defending this exceptional case.” (Dkt. 593 at 16.) On March 2, 2021,
`the Court granted Amazon its reasonable fees and costs for work on this matter between January
`2018 through February 2020. (Dkt. 648.) Amazon then requested its supplemental fees and costs
`to account for work on this matter between March 2020 and February 2021 by submitting a
`declaration substantiating those fees. (Dkt. 649.) The Court awarded Amazon its reasonable
`supplemental fees and costs but denied recovery of fees related to a pending Federal Circuit appeal,
`without prejudice to Amazon renewing its request after the appeal had concluded. (Dkt. 656.)
`Since that time, the parties have stipulated to extend the deadline for Amazon to request
`further supplemental fees, to avoid burdening the Court with serial requests. On May 5, 2023,
`Amazon timely submitted declarations for further supplemental fees for work on this matter
`between March 2021 and March 2023. (Dkts. 873-875.) On May 8, 2023, the Court ordered
`Amazon to file a motion for supplemental fees. (Dkt. 876.) Amazon now moves for its further
`supplemental fees and costs as set forth in its declarations and asks that the Court award the full
`amount requested. The requested fees are recoverable, and Amazon has already reduced its request
`by hundreds of thousands of dollars to ensure reasonableness.
`
`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
`
`MOT. AND MPA ISO
`SUPP. 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
`
`
`
`

`

`Case 5:18-md-02834-BLF Document 880 Filed 05/23/23 Page 6 of 15
`
`
`
`I.
`
`THE REQUESTED FEES ARE RECOVERABLE.
`Amazon requests supplemental fees and costs for work performed between March 2021 and
`March 2023. This work resulted from PersonalWeb’s prolonging this case by pursuing three
`appeals and cycling through a litany of schemes to avoid paying the judgment. The Court has
`already found the case exceptional on five separate grounds:
`
`(1) PersonalWeb’s infringement claims related to Amazon S3 were objectively
`baseless and not reasonable when brought because they were barred due to a final
`judgment entered in the Texas Action; (2) PersonalWeb frequently changed its
`infringement positions to overcome the hurdle of the day; (3) PersonalWeb
`unnecessarily prolonged this litigation after claim construction foreclosed its
`infringement theories; (4) PersonalWeb’s conduct and positions regarding the
`customer cases were unreasonable; and (5) PersonalWeb submitted declarations
`that it should have known were not accurate.
`(Dkt. 636 at 33.)
`While the amount of a fee award under Section 285 “must bear some relation to the extent
`of the misconduct,” a calculation of fees “does not require a tedious, line-by-line investigation of
`the hours” expended. In re Rembrandt Techs. LP Pat. Litig., 899 F.3d 1254, 1279-80 (Fed. Cir.
`2018). In other words, “‘[t]he essential goal’ in shifting fees[] is ‘to do rough justice, not to achieve
`auditing perfection.’” Id. at 1280 (quoting Goodyear Tire & Rubber Co. v. Haeger, 581 U.S. 101,
`110 (2017)). “The court may decide, for example, that all (or a set percentage) of a particular
`category of expenses—say, for expert discovery—were incurred solely because of a litigant’s bad-
`faith conduct.” Id. Ultimately, determining reasonable fees remains an exercise of the district
`court’s discretion. See id. at 1278, 1280. And full fees may be warranted when a party engages in
`“extensive misconduct [] enough to comprise an abusive pattern or a vexatious strategy that was
`pervasive enough to infect the entire litigation.” Id. at 1279 (internal quotations omitted).
`The Court previously ruled that for fee-shifting under Section 285, the required “‘causal
`connection’ … between the misbehavior and the legal fees imposed [ ] ‘is most appropriately
`framed as a but-for test: The complaining party ... may recover “only the portion of his fees that he
`would not have paid but for” the misconduct.’” (Dkt. 648 at 4 (quoting Fox v. Vice, 563 U.S. 826,
`836 (2011)). As explained in greater detail below, Amazon’s supplemental fees relate to three basic
`categories: (a) defense of PersonalWeb’s multiple meritless appeals; (b) the motion to recover fees
`
`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
`
`MOT. AND MPA ISO
`SUPP. FEES (MAY 2023)
`
`
`
`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 880 Filed 05/23/23 Page 7 of 15
`
`
`
`under Section 285 and related work, including the defense of PersonalWeb’s appeal of the fee
`award; and (c) work performed attempting to secure or enforce the fee award. Amazon would not
`have incurred these supplemental fees and costs but for PersonalWeb’s exceptional conduct. And
`even more, the bad-faith tactics employed by PersonalWeb and its principals and agents to avoid
`paying the judgment—which this Court has repeatedly noted—provide another basis to find that
`PersonalWeb’s exceptional conduct pervaded the entire case.
`
`A.
`The Court should award Amazon fees for the multiple meritless appeals.
`Amazon seeks fees based on the following two appeals: (1) PersonalWeb’s petition for
`certiorari of the Federal Circuit’s decision affirming this Court’s Kessler ruling; and
`(2) PersonalWeb’s appeal of this Court’s rulings on claim construction and non-infringement. The
`Court previously denied Amazon’s request for fees concerning the claim construction and non-
`infringement appeal in the amount of $106,291.43 without prejudice to renewal after the Federal
`Circuit’s decision. (See Dkt. 656 at 2-3.) Amazon renews its request for those fees along with the
`additional fees it has incurred defending the appeal since.
`The first appeal of claim preclusion/Kessler doctrine issues followed the Court’s grant of
`summary judgment, holding that claim preclusion barred PersonalWeb’s claims up to the date of
`final judgment in the earlier Texas Action, and that the Kessler doctrine barred PersonalWeb’s post-
`judgment claims. (Dkt. 394 at 23, 26.) The Court has already found the fees Amazon incurred for
`claim preclusion/Kessler issues, including on appeal, to be recoverable and awarded them. (Dkt.
`648 at 22 (“The Court determines Amazon is entitled to $135,720.79 in attorneys’ fees for 271.1
`hours of work related to the federal circuit appeal.”); Dkt. 656 at 3-4 (“Defendants request
`reimbursement for additional fees in the amount $98,019.07 incurred defending the appeal of the
`Claim Preclusion/Kessler Doctrine …. The requested amount[] will be granted.”).)
`The Court ruled originally that the “uncorroborated and self-serving” nature of the
`declarations that PersonalWeb submitted did not create a genuine dispute of material fact about the
`subject matter of the Texas Action in light of the “plain meaning of the Texas Complaint,
`infringement contentions, and discovery requests.” (Dkt. 394 at 18.) On appeal, PersonalWeb
`persisted in its arguments that “claim preclusion is inapplicable [to the claim in the Northern
`
`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
`
`MOT. AND MPA ISO
`SUPP. FEES (MAY 2023)
`
`
`
`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 880 Filed 05/23/23 Page 8 of 15
`
`
`
`District of California] because the Texas case involved a different feature of Amazon’s S3 system,
`and therefore a different cause of action, than the feature that is at issue [in this suit]” and that “the
`with-prejudice dismissal of the action against Amazon in the Texas case did not constitute an
`adjudication of non-infringement and is therefore insufficient to trigger the Kessler doctrine.” In
`re PersonalWeb Techs. LLC, 961 F.3d 1365, 1374 (Fed. Cir. 2020).
`The Federal Circuit agreed with this Court, upholding the order and rejecting both
`challenges. Id. It held that PersonalWeb had indeed accused the same feature of Amazon’s S3
`system in the Texas case as in the Northern District of California case and “PersonalWeb’s assertion
`… is thus at odds with the representations PersonalWeb made in the Texas case.” Id. at 1376.
`Second, the panel “reject[ed] PersonalWeb’s contention that the issue of non-infringement must be
`‘actually litigated’ in order to invoke the Kessler doctrine. PersonalWeb’s stipulated dismissal with
`prejudice in the Texas case operated as an adjudication on the merits for claim preclusion
`purposes.” Id. at 1379 (citing Levi Strauss & Co. v. Abercrombie & Fitch Trading Co., 719 F.3d
`1367, 1372–73 (Fed. Cir. 2013); 18A Charles A. Wright, Fed. Prac. and Proc. § 4435 (2d ed.
`2002)). The Federal Circuit’s reliance on PersonalWeb’s own representations and proffered legal
`authority to reject its appeal should have made it apparent to PersonalWeb that its appeal would be
`unsuccessful. Moreover, before suing, PersonalWeb relied on a first opinion of counsel that did
`not consider the Kessler doctrine at all. (Dkt. 608-1 ¶ 4.) It also obtained a second opinion (Dkt.
`608-8), which concluded that Kessler preclusion was unlikely to apply, despite acknowledging that
`under this Court’s precedent it requires only a “final judgment,” not that the infringement issues
`were “actually litigated” in the earlier case. (Id. at 9-10.) The appeal on claim preclusion/Kessler
`doctrine was more of the same “objectively baseless” and “unreasonable” positions that the Court
`found made the case exceptional. Undeterred, PersonalWeb appealed the claim preclusion/Kessler
`doctrine issue to the Supreme Court forcing Amazon to incur even more fees. PersonalWeb Techs.,
`LLC v. Patreon, Inc., 142 S. Ct. 2707 (2022). The Supreme Court summarily denied the writ. Id.
`Regardless of these appeals on the claim preclusion/Kessler doctrine, the Court’s separate claim
`construction and non-infringement rulings in favor of Amazon foreclosed relief for PersonalWeb
`making this appeal moot. The Court should, consistent with its past finding that PersonalWeb’s
`
`MOT. AND MPA ISO
`SUPP. FEES (MAY 2023)
`
`
`
`4
`
`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
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ATTORNEYS AT LAW
`
`FENWICK & WEST LLP
`
`
`
`

`

`Case 5:18-md-02834-BLF Document 880 Filed 05/23/23 Page 9 of 15
`
`
`
`exceptional conduct was a “but for” cause of Amazon incurring similar appeal fees, award the
`supplemental fees as well.
`PersonalWeb’s second appeal concerned the claim construction and non-infringement
`orders, specifically focusing on the claim term “unauthorized or unlicensed.” In re PersonalWeb
`Techs. LLC, No. 2020-1566, 2021 WL 3557196 (Fed. Cir. Aug. 12, 2021). This Court had found
`PersonalWeb’s position that Amazon was reading out claim language in its proposed construction
`was based on arguments with only “superficial appeal,” “without support,” and “without merit,” as
`the Court relied on the plain language and intrinsic record to grant Amazon’s construction. (Dkt.
`485.) In its opinion, the Federal Circuit stated “PersonalWeb’s primary argument on appeal is the
`same as its primary argument before the district court, namely, that the court’s construction fails to
`give meaning all of the words in the claim.” In re PersonalWeb Techs., 2021 WL 3557196, at *4.
`The panel in a brief six-page opinion disposed of the appeal, ruling the Court’s claim construction
`was “correct” and that the Court “correctly granted summary judgment in favor of Amazon.” Id.
`at *4, 6. PersonalWeb on appeal recycled arguments this Court had rejected. Amazon incurred
`fees defending this appeal because of PersonalWeb’s exceptional conduct as well, as PersonalWeb
`presented substantively weak positions, and that appeal followed years of PersonalWeb changing
`its infringement theories, assertions about what technologies were accused, and attempts to
`reinterpret the Court’s claim constructions. While the Court previously partially reduced “claim
`construction” and “non-infringement” fees (Dkt. 648 at 18-21), a full award is warranted here for
`these reasons, as well as because PersonalWeb has continued to engage in pervasive misconduct.
`
`B.
`
`The Court should award fees that Amazon incurred on the fee award.
`
`The second category of fees relate to the motion to recover fees under Section 285 and
`related work, including responding to PersonalWeb’s appeal of the fee award. As this Court has
`previously explained, § 285 allows “for the recovery of fees for time spent on the issue of attorneys’
`fees itself.” Dkt. 648 at 23 (citing Central Soya Co. v. Geo. A. Hormel & Co., 723 F.2d 1573, 1578
`(Fed. Cir. 1983). The additional fees that Amazon incurred in seeking fees, including responding
`to the appeal of the fee order, are likewise recoverable, and the Court should grant them. The
`
`MOT. AND MPA ISO
`SUPP. FEES (MAY 2023)
`
`
`
`5
`
`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
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ATTORNEYS AT LAW
`
`FENWICK & WEST LLP
`
`
`
`

`

`Case 5:18-md-02834-BLF Document 880 Filed 05/23/23 Page 10 of 15
`
`
`Court’s exceptional case order and fee award remain pending on appeal with oral argument
`scheduled for June 9, 2023. These fees total $292,505.92. (Dkt. 873 ¶ 12.) To avoid further motion
`practice, Amazon requests that the Court award these fees now rather than deferring them to after
`resolution of the appeal. But for the Court’s convenience, Amazon has segregated these fees in the
`Gregorian Declaration.
`
`C.
`
`The Court should award fees for attempting to enforce the judgment.
`1.
`The Court should award fees for PersonalWeb’s judgment avoidance
`tactics in this Court.
`
`PersonalWeb, its principals, and its agents have engaged in bad-faith tactics to avoid paying
`the fee award, and those tactics further support awarding supplemental fees. At seemingly every
`opportunity, PersonalWeb, its principals, and its agents engaged in a bid to frustrate post-judgment
`discovery and prevent enforcement of the judgment—creating substantially more work for Amazon
`(and this Court) and causing Amazon to incur additional fees. These tactics included
`PersonalWeb’s having its Stubbs Alderton litigation counsel claim that it couldn’t be served with
`post-judgment discovery. (Dkt. 659-1.) After the Court ruled that Stubbs Alderton could indeed
`be served, Stubbs Alderton attempted to withdraw as counsel six times. (See Dkts. 674, 678, 679,
`683, 688, 728.) Even after the Court had specifically instructed that Stubbs Alderton could not
`withdraw without substitute counsel (Dkt. 694), PersonalWeb and Stubbs Alderton still filed
`another unilateral notice of withdrawal, apparently trying to induce the Clerk of Court to approve
`withdrawal notwithstanding this Court’s specific instructions. (Dkt. 678.) PersonalWeb refused to
`produce documents and information about its finances, forcing Amazon to twice move to compel
`and the Court to order compliance. (Dkts. 664, 704.) In response, PersonalWeb made a small
`document production (collected without meaningful supervision by its counsel of record) and
`provided interrogatory responses that asserted objections the Court had already declared waived
`and otherwise incorporated the entire document production by reference instead of providing
`compliant responses. (Dkt. 717-9.) Then, mere hours after committing in writing that it would
`take additional steps to comply, PersonalWeb’s counsel at Stubbs Alderton sent an email reversing
`
`MOT. AND MPA ISO
`SUPP. FEES (MAY 2023)
`
`
`
`6
`
`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
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ATTORNEYS AT LAW
`
`FENWICK & WEST LLP
`
`
`
`

`

`Case 5:18-md-02834-BLF Document 880 Filed 05/23/23 Page 11 of 15
`
`
`course arguing that PersonalWeb need no longer comply with this Court’s orders at all because a
`California state court had appointed a receiver over PersonalWeb’s assets. (Dkt. 717-10.)
`The Court ruled that PersonalWeb’s manipulation of its counsel of record, “along with the
`chameleon-like efforts of PersonalWeb to use this time to make itself judgment proof, amount to a
`concerted effort to thwart collection of the judgment ordered by this Court.” (Dkt. 694 at 3-4.) The
`above actions (as well as others reflected in the record) are more of the same type of pernicious
`conduct that seeks to undermine the Court’s authority. The fees Amazon incurred countering these
`bad-faith tactics and seeking to enforce the judgment are recoverable. See Dkt. 648 at 23 (“The
`compensatory purpose of § 285 is best served if the prevailing party is allowed to recover his
`reasonable expenses in prosecuting the entire action.”). But PersonalWeb’s latest actions also
`provide an independent reason to find this case exceptional, justifying awarding fees to Amazon.
`
`2.
`
`The Court should award fees for PersonalWeb’s attempt to use a
`separate state court proceeding to undermine this Court’s jurisdiction
`over its judgment.1
`
`Amazon also seeks fees that it has incurred in the parallel California state court actions
`seeking to enforce the judgment. Amazon was forced to intervene in state court after PersonalWeb
`and its related parties threatened Amazon that it would be in contempt of the state court receivership
`and preliminary injunction if it continued to seek post-judgment discovery in this Court. These
`actions were simply an extension of PersonalWeb’s judgment avoidance scheme—a wrongful
`attempt to shift judgment enforcement issues away from this Court to what PersonalWeb believed
`would be a more favorable forum. That conduct should be deterred and not rewarded.
`Fees for Amazon’s intervention in these state court receivership proceedings are
`recoverable on at least two independent grounds. First, exceptional case fee awards under Section
`285 may include work performed for a related or ancillary case or administrative proceeding.
`Monolithic Power Sys., Inc. v. O2 Micro Int’l Ltd., 726 F.3d 1369-70 (Fed. Cir. 2013) (affirming
`
`
`1 Amazon has a pending request in California Superior Court for its fees related specifically to
`opposing two anti-SLAPP motions. Amazon will submit an update to the Court on this request so
`that there is not double recovery of these fees.
`
`MOT. AND MPA ISO
`SUPP. FEES (MAY 2023)
`
`
`
`7
`
`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
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ATTORNEYS AT LAW
`
`FENWICK & WEST LLP
`
`
`
`

`

`Case 5:18-md-02834-BLF Document 880 Filed 05/23/23 Page 12 of 15
`
`
`award of fees for a related ITC action); PPG Indus., Inc. v. Celanese Polymer Specialties Co., 840
`F.2d 1565, 1569 (Fed. Cir. 1988) (reversing the trial court’s denial of fees for related administrative
`proceedings because it held that the “entire work product was necessary to the case”). In this way,
`Section 285 is consistent with other federal fee-shifting statutes. See G & G Fire Sprinklers, Inc.
`v. Bradshaw, 156 F.3d 893, 907-08 (9th Cir. 1998), vacated on other grounds, sub nom. Bradshaw
`v. G & G Fire Sprinklers, Inc., 526 U.S. 1061 (1999); Gulfstream III Assocs., Inc. v. Gulfstream
`Aerospace Corp., 995 F.2d 414, 420 (3d Cir. 1993). Here, because there would have been no state
`court actions “but-for” PersonalWeb principals’ exceptional conduct before this Court—and
`because Amazon’s involvement in these actions was necessary to enforce this Court’s judgment—
`the Court may award fees expended for these actions. See Mathis v. Spears, 857 F.2d 749, 755
`(Fed. Cir. 1988) (ruling that the prevailing party is entitled to recovery for all work reasonably and
`necessarily performed for the defense (citing Hensley v. Eckerhart, 461 U.S. 424, 435 (1983)); see
`also Amneal Pharms. LLC v. Almirall, LLC, 960 F.3d 1368, 1371 (Fed. Cir. 2020) (§ 285 may
`authorize fees “incurred during, in close relation to, or as a direct result of, judicial proceedings”).
`Second, Amazon may recover fees as part of the costs incurred enforcing the judgment
`under California state law. Federal Rule of Civil Procedure 69 requires the district court to apply
`local state law to proceedings supplementary to and in aid of a judgment. See Carnes v. Zamani,
`488 F.3d 1057, 1060 (9th Cir. 2007). In California, the “Enforcement of Judgments Law (‘EJL’)
`provides that a ‘judgment creditor is entitled to the reasonable and necessary costs of enforcing a
`judgment.’” Id. (quoting Cal. Code Civ. P. § 685.040). Recoverable costs, in turn, include attorney
`fees otherwise allowed by law. Cal. Code Civ. P. § 685.040; see also Carnes, 488 F.3d at
`1060 (stating that recoverable costs may include attorney fees incurred in enforcing the judgment
`when the prevailing party was entitled to attorney’s fees in the underlying action); Berti v. Santa
`Barbara Beach Props., 145 Cal. App. 4th 70, 77 (2007) (stating that “Code of Civil Procedure
`section 685.040 authorizes postjudgment fees provided by law”). Indeed, the Supreme Court of
`California has explained that “attorney fees incurred in enforcement efforts” are “a permissible item
`of costs” under section 685.040 when “there is some other legal basis for such an award.” See
`Ketchum v. Moses, 24 Cal. 4th 1122, 1141 n.6 (2001) (emphasis in original). Such is the case here.
`
`MOT. AND MPA ISO
`SUPP. FEES (MAY 2023)
`
`
`
`8
`
`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
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ATTORNEYS AT LAW
`
`FENWICK & WEST LLP
`
`
`
`

`

`Case 5:18-md-02834-BLF Document 880 Filed 05/23/23 Page 13 of 15
`
`
`The Court has already held that Section 285 and Octane Fitness, LLC v. ICON Health & Fitness,
`Inc., 572 U.S. 545 (2014) authorize the award of attorneys’ fees to Amazon for this exceptional
`case. (See Dkt. 636 at 32-33.) Thus, the Court’s award under Section 285 entitles Amazon under
`the California statute to recover its additional fees seeking to secure and enforce the judgment.
`The facts of the case also warrant a full award of these fees, as discovery has revealed that
`PersonalWeb’s misconduct in seeking to make itself judgment-proof spans a decade and pervades
`this case. PersonalWeb’s principals structured their “investment” in PersonalWeb as secured debt
`to ensure that they would never have to pay any unwanted creditors.2 The scheme worked as
`follows: The investors3 never capitalized PersonalWeb for its anticipated business. Instead, they
`paid expenses as they arose, and promptly removed and distributed to themselves the proceeds of
`any litigation settlements. The investors did not expect “repayment” on the loans, and instead,
`repeatedly extended their maturity dates so that they would not come due. 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 any PersonalWeb assets, leaving unsecured creditors with nothing. When PersonalWeb
`sued over 85 Amazon customers on legally barred claims, it had only $347,000 in the bank yet
`“owed” these investors $8.2 million. And PersonalWeb was paying as much as $400,000 per month
`to its lawyers, yet Mr. Bermeister testified that it would be unable pay a fee award without
`additional “investment.”
`As soon as Amazon asked about securing the judgment, Murray Markiles, PersonalWeb’s
`outside corporate counsel, partial owner of ECA, and managing agent for both ECA and Claria,
`announced to PersonalWeb’s counsel and other principals: “it begins.” He then began pr