Case 5:18-md-02834-BLF Document 919-1 Filed 12/05/23 Page 1 of 7
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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.
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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: PERSONALWEB TECHNOLOGIES,
`LLC ET AL., PATENT LITIGATION,
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`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,
`
`Case No. 5:18-md-02834-BLF
`
`Case No. 5:18-cv-00767-BLF
`
`Case No. 5:18-cv-05619-BLF
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`DECLARATION OF TODD R.
`GREGORIAN IN SUPPORT OF
`RESPONSE OF AMAZON.COM, INC.,
`AMAZON WEB SERVICES, INC., AND
`TWITCH INTERACTIVE, INC. TO
`PERSONALWEB’S SUPPLEMENTAL
`OPPOSITION TO MOTION FOR
`FURTHER SUPPLEMENTAL FEES
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`
`
`Plaintiffs,
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`v.
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`TWITCH INTERACTIVE, INC.,
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`Defendant.
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`ATTORNEYS AT LAW
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`FENWICK & WEST LLP
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`DECL. ISO RESPONSE TO PERSONALWEB’S SUPP
`OPP TO MOTION FOR FURTHER SUPPLEMENTAL FEES
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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 919-1 Filed 12/05/23 Page 2 of 7
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`I, Todd R. Gregorian, declare as follows:
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`1.
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`I am a partner at the law firm Fenwick & West, LLP, attorney of record for
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`Amazon.com, Inc., Amazon Web Services, Inc., and Twitch Interactive, Inc. (collectively
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`“Amazon”). I submit this declaration in support of the Response of Amazon.com, Inc., Amazon
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`Web Services, Inc., and Twitch Interactive, Inc. to PersonalWeb’s Supplemental Opposition to
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`Motion for Further Supplemental Fees filed concurrently with this document. I have personal
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`knowledge of the facts set forth herein.
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`2.
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`I have reviewed PersonalWeb’s supplemental opposition (Dkt. 910) and supporting
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`papers identifying disputed billing entries, including its claim that:
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`•
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`“PersonalWeb has highlighted the entries from Amazon’s counsel that were
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`performed in pursuit of Amazon’s alter ego theory against PersonalWeb’s
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`alleged alter egos.” (Id. at 2:6-8.)
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`•
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`“PersonalWeb has erred on the side of caution to only highlight those entries
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`that are clearly tied to Amazon’s alter ego claims.” (Id. at 2:12-13.)
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`3.
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`PersonalWeb had reason to know before filing its supplemental opposition that these
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`claims are incorrect. The overwhelming number of disputed billing entries concern work and fees
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`incurred for judgment enforcement generally, including locating PersonalWeb assets, the
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`relationships among and any transfers to and from PersonalWeb and other entities or persons, and
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`other similar information. Amazon sought to identify assets hidden by PersonalWeb’s principals
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`from the receiver and to identify fraudulent transfers. It continues to explore any available method
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`to enforce the judgment, and the suggestion that this work pertains exclusively to an “alter ego”
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`theory—let alone to a separate alter ego lawsuit that did not exist and was only filed by
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`PersonalWeb’s principals against Amazon after most of that work was already performed—is not
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`true.
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`4.
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`To the extent Amazon intended to raise alter ego issues, it intended to do so in this
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`case, as a motion to add alter egos to the district court judgment under Federal Rules of Civil
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`Procedure 69 and California Civil Code § 187. My conversations with counsel indicate that
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`ATTORNEYS AT LAW
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`FENWICK & WEST LLP
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`
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`DECL. ISO SUPP OPP TO MOTION
`FOR FURTHER SUPPLEMENTAL FEES
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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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`

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`Case 5:18-md-02834-BLF Document 919-1 Filed 12/05/23 Page 3 of 7
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`PersonalWeb’s principals filed a state court alter ego declaratory judgment action specifically to
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`prevent that from happening. (See Dkt. 903-1, ¶¶ 3-6.)
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`5.
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`Even the text that PersonalWeb quoted to the Court in support of its position shows
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`that Amazon was engaged in a general judgment enforcement effort: “Amazon must understand
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`the identities of persons and entities involved for the purpose of establishing potential alter ego
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`relationships and fraudulent transfers.” (Id. at 3:26-4:1 (emphasis supplied) (citing Dkt. 779-4 at
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`3-4, 7, 9-10, 16-17, et al.).)
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`6.
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`That Amazon has explored any available method to enforce the judgment is borne
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`out in the discovery requests underlying the fees that PersonalWeb has asked the Court to exclude:
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`a.
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`Post-judgment interrogatories and requests for production on the judgment
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`debtor PersonalWeb Technologies LLC (“PersonalWeb”) (inclusive of documents in the
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`possession of its litigation counsel Stubbs Alderton & Markiles LLP (“Stubbs”)). (Dkts. 689-1 &
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`689-2.) For example, Interrogatory No. 1 states: “Identify all accounts (including but not limited
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`to bank accounts, credit card accounts, brokerage accounts, investment accounts, retirement
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`accounts, pension accounts, lease accounts, internet or other online service accounts, utility
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`accounts, alarm or security service accounts, cable or satellite television accounts, domain name
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`accounts, mortgages, lines of credit, real property, physical assets, cash assets, crypto currency or
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`crypto assets) associated with PersonalWeb.” (Dkt. 689-1 at 6.) Interrogatory No. 2 states:
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`“Identify all bank accounts owned or controlled by PersonalWeb or used for its benefit.” (Id.) And
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`Interrogatory No. 3 states: “Identify all physical assets owned or otherwise controlled by
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`PersonalWeb (including, but not limited to furniture, electronics, computer hardware, real property,
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`and automobiles) at any time from January 1, 2018 to the present, including: (a) the current owner
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`of the assets and (b) all circumstances regarding the receipt, acquisition, transfer or disposition of
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`the asset, including the amount of any consideration exchanged for the assets, the date of the
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`exchanges, and the parties to the exchanges.” (Id.) Request No. 1 seeks: “All documents
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`concerning PersonalWeb’s corporate charters, incorporation, qualifications to do business, by-laws,
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`and minutes (including but not limited to board and committee minutes and resolutions).” (Dkt.
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`689-2 at 5.) Request No. 9 seeks: “All documents concerning PersonalWeb’s parent companies,
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`DECL. ISO RESPONSE TO PERSONALWEB’S SUPP
`OPP TO MOTION FOR FURTHER SUPPLEMENTAL FEES
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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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`
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`

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`Case 5:18-md-02834-BLF Document 919-1 Filed 12/05/23 Page 4 of 7
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`subsidiary companies, affiliated companies, companies under common ownership, predecessors in
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`interest, and successors in interest.” (Id. at 6.) And Request No. 20 seeks: “All documents
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`concerning payments or transfers of anything of value by PersonalWeb to any person or entity on
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`behalf of, or for the benefit of, any person or entity other than PersonalWeb.” (Id. at 8.)
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`b.
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`Post-judgment subpoena including requests for production on Mr. Michael
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`Weiss, president of PersonalWeb. (Exhibit A.) These requests concern judgment enforcement
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`generally and pertain to a range of theories and methods. For example, Request No. 15 seeks: “All
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`documents and communications between You and any other person or entity concerning any of the
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`attorney fee awards or the judgment against PersonalWeb in the Action, including but not limited
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`to communications about the potential for such award(s), Amazon’s attempt(s) to seek such
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`award(s), or any actions taken by You in anticipation of, or which relate in any other way to, such
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`award(s).” (Id. at 13.) Request No. 32 seeks: “All documents relating to payments made by You
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`or PersonalWeb to lawyers, accountants, or other corporate service providers in excess of $100.00
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`since March 1, 2021.” (Id. at 16.) And Request No. 34 seeks: “All documents and communications
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`relating to any obligations incurred by PersonalWeb from You, or transfers from PersonalWeb to
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`You.” (Id.)
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`c.
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`Post-judgment subpoenas including requests for production on third-parties
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`Brilliant Digital Entertainment, Inc. (“BDE”), Claria Innovations, LLC (“Claria”), Europlay
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`Capital Advisors, LLC (“Europlay”), and Monto Holdings Pty Ltd. (“Monto”). (Dkts. 733-1, 733-
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`2, 733-3, 771-1.) The requests for production served on each of these entities are virtually identical
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`except for variations in the recipient (target) entity specified in the requests. Again, they seek
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`information relevant to judgment enforcement generally. (See, e.g., Dkt. 733-1.) For example,
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`Request No. 33 seeks: “All documents relating to payments made by You or PersonalWeb to
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`lawyers, accountants, or other corporate service providers in excess of $100.00 since March 1,
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`2021.” (Id. at 14.) Request No. 38 seeks: “All documents and communications relating to any
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`additional obligations incurred by PersonalWeb from you, or transfers from PersonalWeb to you,
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`not otherwise covered by Request Nos. 35–37.” (Id.) And Request No. 41 seeks: “All documents
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`relating to Your financial relationship with PersonalWeb, [any of the other third-parties], SAM, or
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`DECL. ISO RESPONSE TO PERSONALWEB’S SUPP
`OPP TO MOTION FOR FURTHER SUPPLEMENTAL FEES
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`
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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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`

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`Case 5:18-md-02834-BLF Document 919-1 Filed 12/05/23 Page 5 of 7
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`SAM Ventures, including loans, write-offs or debt forgiveness, advances, any sales for less than
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`fair market value, or any payments made from December 31, 2019 through the present.” (Id. at 15.)
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`7.
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`There were substantial other hurdles and difficulties in obtaining the foregoing post-
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`judgment discovery from PersonalWeb (including Stubbs), Mr. Weiss, and the third-parties run by
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`PersonalWeb’s principals, including filing several motions to compel. (See Dkts. 738, 793, 799,
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`816, 836-1, 850.)
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`8.
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`PersonalWeb and Stubbs made about 20 document productions comprising well over
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`1,000,000 pages of documents. And the third-parties made over 20 document productions
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`comprising about 65,000 pages for BDE, about 1,500 pages for Claria, nearly 300,000 pages for
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`Europlay, and about 5,000 pages for Monto. Mr. Weiss and the receiver for PersonalWeb also
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`produced documents. Reviewing these documents was a massive and resource-intensive
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`undertaking. Many of the disputed billing entries concern this document review that, again, was
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`directed to judgment enforcement including searches for hidden assets, to uncover fraudulent
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`transfers, and understand corporate and financial background of PersonalWeb and its related entities.
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`9.
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`To this day, Amazon remains concerned that cash or assets belonging to
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`PersonalWeb were deliberately and wrongfully kept out of the receivership to manufacture
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`PersonalWeb’s insolvency and prevent enforcing the judgment. As recently as July of this year
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`Amazon was still seeking some meaningful verification or confirmation that this did not occur. For
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`example, counsel for Amazon asked counsel to have Mr. Kevin Bermeister, the primary principal
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`for PersonalWeb and its non-executive chairman, represent in a sworn declaration that the
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`California state receiver possesses all assets of PersonalWeb and that there are no other assets
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`except those identified in the receiver reports. A true and accurate copy of the last letter requesting
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`such verification or confirmation by Mr. Bermeister, dated July 10, 2023, is attached as Exhibit B.
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`Mr. Bermeister has not provided any such declaration.
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`10.
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`The Court at the hearing asked whether Amazon has requested its fees in the
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`California receivership action. There, Amazon asserted causes of action for judgment enforcement,
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`equitable subordination, and equitable accounting, to preserve rights to that relief. (Dkt. 871-7 at
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`677-82.) Amazon’s complaint included a prayer for attorney fees to preserve its rights. But even
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`DECL. ISO RESPONSE TO PERSONALWEB’S SUPP
`OPP TO MOTION FOR FURTHER SUPPLEMENTAL FEES
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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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`Case 5:18-md-02834-BLF Document 919-1 Filed 12/05/23 Page 6 of 7
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`if Amazon prevails in that action, Amazon’s understanding is that its request for fees would be
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`based only on a good faith argument for extension of existing law concerning the California
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`judgment enforcement fee recovery statute. That is because parties against whom fees could be
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`awarded are the plaintiff entities who obtained the receivership through a fraud on the state court—
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`i.e., they were not parties to the underlying federal action in which there is an applicable fee
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`recovery statute.
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`11.
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`PersonalWeb argues that Amazon’s requested search terms for PersonalWeb
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`document repositories to respond to the post-judgment discovery “directly targeted evidence from
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`PersonalWeb related to Amazon’s alleged alter ego claims against the Secured Creditors.” (Dkt.
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`910 at 4:3-10.) But Amazon requested searches of names of involved persons, such as
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`PersonalWeb principals, counsel of record, and even the district court judge, to try to locate hidden
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`assets, uncover fraudulent transfers, and discover actions taken leading up to or in the wake of the
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`Court’s exceptionality order and judgment. Searches of the names of counsel of record for the
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`third-parties and even the name of Her Honor cannot reasonably be construed as concerning only
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`alter ego. If there was any misunderstanding stemming from the record, Amazon can represent that
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`it is not seeking to assert alter ego against counsel of record for the third-parties or against the Court.
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`12.
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`PersonalWeb also makes much of a priority list of document categories that Amazon
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`requested PersonalWeb search for and produce from Stubbs’ repositories more than 18 months after
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`the discovery was originally propounded on PersonalWeb, contending that the “only potential use
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`of this evidence was in pursuit of Amazon’s alter ego theories.” (Id. at 4:21-22; Dkt. 911-3 (Ex. C).)
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`Among other categories of documents, this list seeks: “1. Any responsive documents or
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`communications for which Mr. Markiles is a custodian, sender, recipient.”; “2. Documents
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`concerning the corporate or investment structure of PersonalWeb”; and “3. Information on the loans
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`between PersonalWeb and the secured creditors.” (Dkt. 911-3 at 2.) These categories of documents
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`are all relevant to judgment enforcement, including locating hidden assets, uncovering fraudulent
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`transfers, and yielding background information on PersonalWeb to further the efforts to find assets
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`and transfers. Mr. Markiles designed the asset protection scheme and is managing agent of two of
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`the third-parties. And documents on the “corporate or investment structure of PersonalWeb” and
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`DECL. ISO RESPONSE TO PERSONALWEB’S SUPP
`OPP TO MOTION FOR FURTHER SUPPLEMENTAL FEES
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`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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`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 919-1 Filed 12/05/23 Page 7 of 7
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`the “loans between PersonalWeb and the secured creditors” are clearly relevant to the search for
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`hidden assets or fraudulent transfers. Understanding PersonalWeb, the third-parties, and the
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`relationship between them is all relevant to reveal the nature and location of PersonalWeb assets,
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`who may have received fraudulent transfers, and considering the next steps in pursuing judgment
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`enforcement.
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`13.
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`Amazon has repeatedly contacted PersonalWeb to try to reach a compromise on the
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`disputed billing entries. Amazon contacted PersonalWeb several times to request that it provide its
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`position on a stipulated amount to resolve this issue without having to involve the Court analyzing
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`the disputed time entries. A true and accurate copy of email correspondence between counsel for
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`Amazon and counsel for PersonalWeb, dated between November 22 – December 5, 2023, seeking
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`PersonalWeb’s position on a stipulated amount of fees attributable to the disputed billing entries is
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`attached as Exhibit C. (See also Dkts. 911-4 & 911-5.) Amazon also provided PersonalWeb a
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`compromise proposal including an amount of attorneys’ fees to try to resolve the disputed billing
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`entries. Specifically, Amazon broke the disputed billing entries (Dkt. 911-1) into 3 categories:
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`(1) entries reviewing documents from the third-parties, (2) entries on alter ego, and (3) all other
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`entries that were not (1) or (2). Amazon then applied a 30% discount to category (1) entries, 100%
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`discount to category (2) entries, and no discount to category (3) entries. The resulting figure was a
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`$491,534.86 recovery on the $566,411.51 in billing entries at issue (~13% discount). In other
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`words, if the Court sustains PersonalWeb’s objection, then the Court should only discount fees in
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`the amount of $74,876.65. A true and accurate copy of a spreadsheet showing Amazon’s
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`compromise proposal is attached as Exhibit D. A true and accurate copy of the supporting billing
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`entries underlying Amazon’s spreadsheet identified by color-coded highlighting—category
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`(1) (yellow) and category (2) (green) is attached as Exhibit E.
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` I
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` declare under penalty of perjury under the laws of the United States that the foregoing is
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`true and correct. Executed in San Francisco, California on December 5, 2023.
`
`/s/ Todd R. Gregorian
`Todd R. Gregorian
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`DECL. ISO RESPONSE TO PERSONALWEB’S SUPP
`OPP TO MOTION FOR FURTHER SUPPLEMENTAL FEES
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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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`ATTORNEYS AT LAW
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`FENWICK & WEST LLP
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