Case 5:18-md-02834-BLF Document 903-1 Filed 09/15/23 Page 1 of 5
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`J. DAVID HADDEN (CSB No. 176148)
`dhadden@fenwick.com
`SAINA S. SHAMILOV (CSB No. 215636)
`sshamilov@fenwick.com
`MELANIE L. MAYER (admitted pro hac vice)
`mmayer@fenwick.com
`TODD R. GREGORIAN (CSB No. 236096)
`tgregorian@fenwick.com
`RAVI R. RANGANATH (CSB No. 272981)
`rranganath@fenwick.com
`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.
`
`
`
`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 REPLY
`OF AMAZON.COM, INC., AMAZON
`WEB SERVICES, INC., AND TWITCH
`INTERACTIVE, INC. FURTHER
`SUPPLEMENTAL FEES REQUEST
`
`
`
`PERSONALWEB TECHNOLOGIES, LLC and
`LEVEL 3 COMMUNICATIONS, LLC,
`Plaintiffs,
`
`v.
`
`TWITCH INTERACTIVE, INC.,
`
`Defendant.
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`DECL OF TODD R. GREGORIAN ISO REPLY RE
`FURTHER SUPPLEMENTAL FEES REQUEST
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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 903-1 Filed 09/15/23 Page 2 of 5
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`I, Todd R. Gregorian, declare as follows:
`1.
`I am a partner at the law firm Fenwick & West, LLP (“Fenwick”), attorney of record
`for Amazon.com, Inc., Amazon Web Services, Inc., and Twitch Interactive, Inc. (collectively
`“Amazon”). I submit this declaration in support of Amazon’s Reply in Support of Further
`Supplemental Fees Request filed concurrently with this document. I have personal knowledge of
`the facts set forth herein.
`The award Amazon requests in connection with this motion is $2,856,570.62 in
`2.
`attorney fees and $193,299.37 in costs. Amazon originally requested $3,237,629.66 in fees but
`revised that request downward by $344,172.10 to $2,893,457.561 in connection with a settlement
`of its Superior Court’s anti-SLAPP fee award against PersonalWeb’s investors. (Dkt. 893.)
`Amazon now deducts an additional $36,886.94 for fees incurred defending the investors’
`declaratory judgment action against Amazon as discussed herein.
`The alter ego action filed by PersonalWeb’s principals.
`3.
`Amazon at all relevant times has attempted to enforce the Court’s judgment against
`PersonalWeb by any available means. The state court receivership has limited the available
`procedures for enforcement, but the work Amazon has done on enforcement has largely consisted
`of discovery relevant to a range of judgment enforcement issues, including identifying cash and
`assets, asset tracing, investigating transactions for indications of fraudulent transfer, and
`determining corporate structure and relationships to identify potential alter egos. It was this work
`that led us to discover that the individuals that ran PersonalWeb (including Kevin Bermeister and
`Anthony Neumann of BDE, and Murray Markiles of Stubbs Alderton LLP) had manipulated
`PersonalWeb’s finances to keep it undercapitalized from its inception, and that they secured the
`California Superior Court receivership on the basis of fraudulent representations, as explained more
`fully in Dkt. 871-7. See also Dkt. 872 at 3-4 (identifying and quoting the specific fraudulent
`misrepresentations to the Superior Court); Dkt. 864 at 6 (“The investors took the fraud one step
`
`1 Amazon also revised the costs requested down by $306.32 from $193,605.69 to $193,299.37 for
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`the same reason.
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`DECL OF TODD R. GREGORIAN ISO REPLY RE
`FURTHER SUPPLEMENTAL FEES REQUEST
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`1
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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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`

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`Case 5:18-md-02834-BLF Document 903-1 Filed 09/15/23 Page 3 of 5
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`further by filing at the Superior Court a complaint and motions presenting themselves only as arms’
`length creditors, without disclosing that they both owned PersonalWeb, but also controlled it, and
`were thus themselves responsible for the supposed “nonpayment” that they were complaining
`about.”).
`4.
`On February 27, 2023, BDE, ECA, Claria, and Monto, together with other investors
`of PersonalWeb—Element Entertainment Inc. (“Element”), Eurocapital Business Development
`LLC (“EBD”), and Kinetech, Inc.—filed a complaint for declaratory judgment against Amazon. In
`the complaint, the plaintiffs seek a declaration that they are not “alter egos” of PersonalWeb LLC.
`Such a declaration would provide a basis for these entities to resist enforcement of the Court’s
`judgment as against them and potentially their principals as well. A true and correct copy of the
`complaint is attached as Exhibit 1.
`5.
`A diagram in this filing purports to explain the relationship between the investors
`and PersonalWeb:
`
`6.
`After this complaint was filed, on March 30, 2023, I conducted a call with counsel
`for the declaratory judgment plaintiffs regarding Amazon’s response, with at least Michael Shipley
`of Kirkland & Ellis and Thomas Robins of Frandzel Robins Bloom & Csato, L.C. At the time, no
`dispute concerning alter ego was ripe, and thus the declaratory judgment complaint was subject to
`potential dismissal due to lack of an actual controversy. See Cal. Code. Civ. Proc. § 1060. A new
`state court proceeding would be (and now, has been) an expensive waste of resources given that
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`DECL OF TODD R. GREGORIAN ISO REPLY RE
`FURTHER SUPPLEMENTAL FEES REQUEST
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`2
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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 903-1 Filed 09/15/23 Page 4 of 5
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`this Court is more familiar with the facts and could adjudicate at least some alter ego issues via a
`streamlined post-judgment motion. On the call, Mr. Shipley stated to the effect that the
`PersonalWeb’s investors who are non-diverse from Amazon would raise jurisdictional defenses to
`such a motion if filed. A true and correct copy of an email string setting up the call is attached as
`Exhibit 2.
`7.
`On April 13, 2023, Amazon filed its answer and counterclaim in response to the
`cross-complaint. This was the first time Amazon formally asserted an alter ego claim against
`PersonalWeb’s investors.
`8.
`Notwithstanding that they are recoverable as intimately related to this case, fees
`expended litigating alter ego issues at the state court represent a natural “cut off” point to end fee
`proceedings before this Court. Therefore, Amazon withdraws $36,886.94 from its request,
`representing the portion of its current fee request related to that work. Amazon withdraws these
`fees without prejudice to its later seeking reimbursement of them at the Superior Court. I attach a
`chart summarizing the relevant billing entries as Exhibit 3.
`Reasonableness of Amazon’s Hourly Rates
`9.
`I have been Fenwick’s lead attorney on this matter since it entered the collection
`phase. I have been a partner at Fenwick since 2020. My practice encompasses both complex
`commercial litigation and intellectual property litigation. I have experience in post-judgment
`enforcement work in cases such as Realtime Adaptive Streaming, LLC v. Netflix, Inc., et al., Case
`No. 2:19-cv-06361-GW(JCx) (C.D. Cal.), Perfect 10, Inc., v. Giganews, Inc., et al., Case No.: 2:11-
`cv-07098-AB-JPR (C.D. Cal.), and Giganews, Inc., et al. v. Perfect 10, Inc., et al. Case No.: 2:17-
`cv-05075-AB (JPR) (C.D. Cal.). These cases involved extended proceedings to collect judgments
`from recalcitrant debtors. The Giganews matters involved alter ego issues like those in this case,
`as well as complex forensic discovery issues, and eventually proceeded to a full trial on state law
`fraudulent transfer claims at which my client prevailed and obtained a punitive damages award. I
`also have extensive experience litigating commercial matters in state court since approximately
`2006, having represented clients in cases in the California Superior Courts in Marin, San Francisco,
`Santa Clara, Los Angeles, and San Bernadino counties.
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`DECL OF TODD R. GREGORIAN ISO REPLY RE
`FURTHER SUPPLEMENTAL FEES REQUEST
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`3
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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 903-1 Filed 09/15/23 Page 5 of 5
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`10.
`Chris Lavin has been the lead Fenwick associate on this matter since 2021. Mr.
`Lavin's practice encompasses both complex commercial litigation and intellectual property
`litigation. He also has considerable experience litigating matters in the California Superior Courts,
`including in System Architecture Information Technology v. Qualcomm Inc., Case No. 37-2014-
`00025432 (Super. Ct., Cnty of San Diego, July 30, 2014), Newman v. Central Concrete Supply,
`Case No. CIV536008 (Super. Ct., Cnty. of San Mateo, October 28, 2015), and Xiong v. Yan, Case
`No. 16-cv-292330 (Super Ct., Cnty. of Santa Clara, March 4, 2016). His responsibilities in those
`matters were similar to those here, and included drafting pleadings, running discovery, taking
`depositions, preparing for and attending hearings and trial, and negotiating settlement.
`11.
`Amazon’s requested blended rate is approximately $650. Its total fee request is
`reasonable given the scope of the matter, the voluntary reductions Fenwick already applied, and
`how much comparable law firms litigating similar claims in California federal and state courts
`charge. For example, the average billing rates in 2022 for Kirkland & Ellis LLP, counsel for
`PersonalWeb’s investors Claria and ECA, were $1,376/hour (Partner), $1,066/hour (Senior
`Associate), and $789/hour (Associate), with an overall blended rate of $1,106/hour, according to
`excerpts of the Valeo 2022 Attorney Hourly Rate Report. Attached hereto as Exhibit 4 is a true
`and correct copy of these excerpts of the Valeo 2022 Attorney Hourly Rate Report, which details
`the hourly rates of The American Lawyer top 200 law firms for years 2017 through 2022.
`12.
`Kirkland itself submitted the above survey to support its own fees request in
`Transperfect Global, Inc. v. Lionbridge Techs., Inc., Civ. A. No. 19-cv-03283-DLC (S.D.N.Y. Feb.
`18, 2022 (Dkt. 293-17)). A true and correct copy of the Declaration of Aaron Marks making such
`request is attached hereto as Exhibit 5.
`I declare under penalty of perjury under the laws of the United States that the foregoing is
`true and correct. Executed in Wilmington, Delaware on September 15, 2023.
`
`
`
`
`/s/ Todd R. Gregorian
`Todd R. Gregorian
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`DECL OF TODD R. GREGORIAN ISO REPLY RE
`FURTHER SUPPLEMENTAL FEES REQUEST
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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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`
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