Case 5:18-md-02834-BLF Document 910 Filed 11/21/23 Page 1 of 6
`
`
`
`
`
`Robert M. Charles, Jr. (admitted pro hac vice)
`RCharles@lewisroca.com
`Patrick Emerson McCormick (CA Bar #307298)
`PMcCormick@lewisroca.com
`Lewis Roca Rothgerber Christie LLP
`One South Church Avenue, Suite 2000
`Tucson, AZ 85701-1611
`Tel: 520.622.2090
`Fax: 520.622.3088
`
`Attorneys for PersonalWeb Technologies, LLC
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`CASE NO. 5:18-md-02834-BLF
`Case No. 5:18-cv-0767-BLF
`Case No. 5:18-cv-05619-BLF
`PERSONALWEB
`TECHNOLOGIES, LLC’S
`SUPPLEMENTAL RESPONSE TO
`AMAZON.COM, INC.’S MOTION
`FOR FURTHER SUPPLEMENTAL
`FEES REQUEST
`
`
`
`IN RE PERSONALWEB
`TECHNOLOGIES, LLC, ET., AL.,
`PATENT LITIGATION,
`
`AMAZON.COM, INC. and AMAZON
`WEB SERVICE, INC.,
`
`
`
`
`v.
`PERSONALWEB TECHNOLOGIES,
`LLC, et al.,
`
`
`
`PERSONAL WEB TECHNOLOGIES,
`LLC, et al.,
`
`
`v.
`TWITCH INTERACTIVE, INC.,
`
`
`
`
`Defendant.
`
`
`
`
`
`
`
`
`
`
`
`Plaintiffs,
`
`Defendants.
`
`Plaintiffs
`
`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
`
`
`
`
`
`Tucson, AZ 85701-1611
`One South Church Avenue, Suite 2000
`
`
`
`
`123006346.4
`
`
`
`
`
` 5:18-MD-02834-BLF, 5:18-CV-0767-
`BLF, 5:18-CV-05619-BLF
`
`
`

`

`Case 5:18-md-02834-BLF Document 910 Filed 11/21/23 Page 2 of 6
`
`
`
`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
`
`PersonalWeb Technologies, LLC hereby submits proposed reductions to Amazon’s
`requested attorneys’ fees due to the unavailability of fees incurred in pursuit of alter ego
`claims without naming the alleged alter egos.
`Attached to the Declaration of Patrick Emerson McCormick in support of this
`Supplemental Response (“McCormick Decl.”) as Exhibit A are excerpts from Dkts. 873-4
`and 874-2. In these excerpts, PersonalWeb has highlighted the entries from Amazon’s
`counsel that were performed in pursuit of Amazon’s alter ego theory against PersonalWeb’s
`alleged alter egos (the “Secured Creditors”). Attached to McCormick Decl. as Exhibit B is
`a spreadsheet with only the highlighted entries from Ex. A. The entries in Ex. B have an
`additional column applying Amazon’s reduced hourly rates (per Dkt. 873 at 6-7) or
`removing the incurred fees if it was timekeeper who billed fewer than 30 hours for whom
`Amazon did not seek to recover (Dkt. 873, ¶ 11). PersonalWeb has erred on the side of
`caution to only highlight those entries that are clearly tied to Amazon’s alter ego claims as
`described below. In total, Amazon has requested $566,411.51 in fees incurred in pursuit of
`alter ego theories, none of which Amazon can recover from PersonalWeb.
`Amazon has effectively conceded that the fees it incurred in pursuit of alter ego claims
`are unavailable for recovery from this Court. (See Dkt. 903-1 at 3:9-14 [waiving $36,886.94
`in fees Amazon incurred in its declaratory relief action in Los Angeles Superior Court].)
`Amazon can only recover fees incurred in pursuit of alter ego claims if and when the alleged
`alter egos are somehow joined or named in the action. (See Dkt. 889-1 at 4:26-7:8.) Here,
`Amazon has not named any alleged alter egos in this action and thus cannot recover fees it
`incurred in pursuit of its alleged alter egos and their information.
`The Secured Creditors initiated a receivership action against PersonalWeb in Los
`Angeles Superior Court on April 27, 2021 (the “Receivership Action”). Amazon appeared
`in the Receivership Action on August 3, 2021. From that point forward, Amazon had actual
`and constructive knowledge PersonalWeb lacked the assets and revenue streams to satisfy
`the approximately $5,000,000 judgement against PersonalWeb (the “Judgement”). Yet
`
`PERSONALWEB’S SUPPLEMENTAL RESPONSE TO SUPPLEMENTAL FEE REQUEST
` 5:18-MD-02834-BLF, 5:18-CV-0767-
`
`- 2 -
`123006346.4
`BLF, 5:18-CV-05619-BLF
`
`
`
`
`
`
`
`
`Tucson, AZ 85701-1611
`One South Church Avenue, Suite 2000
`
`
`
`

`

`Case 5:18-md-02834-BLF Document 910 Filed 11/21/23 Page 3 of 6
`
`
`
`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
`
`Amazon proceeded to spend approximately $2,000,000 in discovery in this Court and the
`Receivership Action in pursuit of the Judgment. Amazon’s claim—that these fees were
`unrelated to alter ego claims or theories—strains credulity.
`No evidence Amazon sought from PersonalWeb after January 2022 was in pursuit of
`recovering the Judgment directly from PersonalWeb, as it was undisputed PersonalWeb
`lacked the assets to satisfy the Judgment. Rather, the discovery Amazon pursued was
`directed at Amazon’s assertions of alter ego liability. The timeline provides a clear
`illustration of Amazon’s laser focus on its alter ego theories against the Secured Creditors.
`Starting in January 2022, Amazon’s time entries repeatedly represent that Amazon was
`explicitly pursuing alter ego theories, referencing “alter ego” and “veil piercing” 30 times.
`On March 18, 2022, Amazon represented to this Court that it sought discovery from
`the Secured Creditors in pursuit of alter ego claims. (See Dkt. 733 at 2:20-23 [“Amazon is
`entitled to explore corporate relationships and transfers in pursuit of alter ego theories”]
`[emphasis added].) This Court agreed, holding “Amazon may explore corporate
`relationships and transfers in pursuit of alter ego theories.” (Dkt. 738 at 2:28-3:1.)
`From March to August 2022, Amazon sought discovery from the Secured Creditors in
`this action directed at the Secured Creditors’ financial information and transactions with
`PersonalWeb. These requests were directed at establishing alter ego liability or recovering
`from the Secured Creditors on a theory of alter ego liability, as evidenced by Amazon’s
`subsequent motion to compel.
`In August and September 2022, Amazon’s motion to compel the Secured Creditors
`were focused on the breadth and scope of the categories related to the structure, finances,
`business, and activities of the Secured Creditors going back to their respective inceptions
`from the 1980s to early-2000s. Amazon submitted charts to this Court seeking to compel
`production from the Secured Creditors for evidence related to Amazon’s alter ego claims.
`(see Dkt. 779-1 at 7, 9-10, 16-17; Dkt. 779-2 at 3-4; Dkt. 779-3 at 1-4, 9-10, 12-13; Dkt.
`779-4 at 3-4, 9-10 [“Amazon must understand the identities of persons and entities involved
`
`PERSONALWEB’S SUPPLEMENTAL RESPONSE TO SUPPLEMENTAL FEE REQUEST
` 5:18-MD-02834-BLF, 5:18-CV-0767-
`
`- 3 -
`123006346.4
`BLF, 5:18-CV-05619-BLF
`
`
`
`
`
`
`
`
`Tucson, AZ 85701-1611
`One South Church Avenue, Suite 2000
`
`
`
`

`

`Case 5:18-md-02834-BLF Document 910 Filed 11/21/23 Page 4 of 6
`
`
`
`for the purpose of establishing potential alter ego relationships and fraudulent transfers”])
`and Amazon’s time entries focused on the Secured Creditors’ financial privacy objections.
`In October 2022, Amazon sought documents from PersonalWeb’s records related to
`the following keywords, which are not relevant to discovery PersonalWeb’s assets, but
`would be relevant to any potential alter ego allegations: bermeister; weiss; klier; petty;
`mirman; frandzel; welin; kane; dyne; neumann; ko; “robb evans;” mbn; fletcher; robins;
`markiles; chan; miller; robbevans; bubman; poltrock; freeman. (Dkt. 791, 3:1-4.) These
`keywords directly targeted evidence from PersonalWeb related to Amazon’s alleged alter
`ego claims against the Secured Creditors. PersonalWeb produced hundreds of thousands of
`pages of documents in response to Amazon’s demands.
`In October and November 2022, Amazon utilized the discovery process to obtain,
`through PersonalWeb, evidence from PersonalWeb’s prior counsel, Stubbs Alderton &
`Markiles. Amazon’s top priorities for the SAM documents focused specifically on the
`emails from Murray Markiles (whom Amazon alleges was also exerting control over
`PersonalWeb through one of the Secured Creditors), PersonalWeb’s corporate structure as
`it related to the Secured Creditors, and the loans between PersonalWeb and the Secured
`Creditors. (See McCormick Decl., Exhibit C, November 10, 2022 email from Amazon
`counsel to PersonalWeb counsel regarding the “categories of documents that Amazon
`would like PersonalWeb to prioritize from the Stubbs Alderton collection”). This evidence
`was no longer relevant to any of Amazon’s claims of misbehavior, as the Court had already
`awarded Amazon its fees. The only potential use of this evidence was in pursuit of
`Amazon’s alter ego theories.
`PersonalWeb requests that Amazon’s supplemental attorneys’ fees award be reduced
`in the amount of the entries for the work described above.
`
`
`PERSONALWEB’S SUPPLEMENTAL RESPONSE TO SUPPLEMENTAL FEE REQUEST
` 5:18-MD-02834-BLF, 5:18-CV-0767-
`
`- 4 -
`123006346.4
`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
`
`
`
`
`
`Tucson, AZ 85701-1611
`One South Church Avenue, Suite 2000
`
`
`
`

`

`Case 5:18-md-02834-BLF Document 910 Filed 11/21/23 Page 5 of 6
`
`
`
`Dated this 21st day of November, 2023.
`
`
`LEWIS ROCA ROTHGERBER CHRISTIE LLP
`
`By: /s/ Patrick Emerson McCormick
`Robert M. Charles, Jr.
`Patrick Emerson McCormick
`Attorneys for
`PersonalWeb Technologies, LLC
`
`
`
`
`
`
`
`
`
`PERSONALWEB’S SUPPLEMENTAL RESPONSE TO SUPPLEMENTAL FEE REQUEST
` 5:18-MD-02834-BLF, 5:18-CV-0767-
`
`- 5 -
`123006346.4
`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
`
`
`
`
`
`Tucson, AZ 85701-1611
`One South Church Avenue, Suite 2000
`
`
`
`

`

`Case 5:18-md-02834-BLF Document 910 Filed 11/21/23 Page 6 of 6
`
`
`
`PROOF OF SERVICE
`I, Renee Creswell, declare:
`I am a citizen of the United States and employed in Pima County, Arizona. I am
`over the age of eighteen years and not a party to the within-entitled action. My business
`address is One South Church Avenue, Suite 2000, Tucson, Arizona 85701-1611.
`On November 21, 2023, I electronically transmitted the following document:
`PERSONALWEB TECHNOLOGIES, LLC’S
`SUPPLEMENTAL RESPONSE TO AMAZON.COM, INC.’S
`MOTION FOR FURTHER SUPPLEMENTAL FEES
`REQUEST
`to the Clerk’s office using the CM/ECF System for filing and served through the Notice of
`Electronic Filing automatically generated by the Court’s facilities.
`
`
`I declare under penalty of perjury under the laws of the State of Arizona that the
`above is true and correct.
`
`Executed on November 21, 2023, at Tucson, Arizona.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ Renee Creswell
`Renee Creswell
`
`PERSONALWEB’S SUPPLEMENTAL RESPONSE TO SUPPLEMENTAL FEE REQUEST
` 5:18-MD-02834-BLF, 5:18-CV-0767-
`
`- 6 -
`123006346.4
`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
`
`
`
`
`
`Tucson, AZ 85701-1611
`One South Church Avenue, Suite 2000
`
`
`
`