On Dec. 9, Keller Postman filed a motion to disqualify Jenner & Block from a D.C. federal case Tubi filed earlier this year to thwart the mass arbitrations.
Last July, two women dressed in black suits showed up at the front door of Lumeah Deschamps' mother's house. One of them said she was an FBI agent from Washington, D.C.
Deschamps refused to open the door but, through the window, the women kept asking about an arbitration demand she filed against streaming service Tubi Inc.
"I was scared," Deschamps said in a Dec. 6 declaration attached to a lawsuit her lawyers at Keller Postman filed this month against Tubi and its law firm, Jenner & Block. "The whole episode was alarming."
The incidence is one of several cited in Keller Postman's Dec. 11 suit, filed in Los Angeles Superior Court, which alleges Jenner & Block hired a former FBI special agent to interview class members who had opted out of a $19.99 million settlement with Tubi in order to arbitrate their claims. Keller Postman, which represented the arbitrating plaintiffs, along with nearly 24,000 other class members, is well known for pursuing mass arbitrations.
For the past year, the Chicago-based firm has been locked in a battle against Tubi and Jenner & Block. Before this month's suit, Tubi sued Keller Postman in U.S. District Court for the District of Columbia to block the mass arbitration. The suit alleges Keller Postman breached Tubi's arbitration agreement by not providing notice before filing a claim, a requirement that Keller Postman countered is unconscionable and unenforceable.
Keller Postman then moved this month in the D.C. case to disqualify Jenner & Block from representing Tubi, citing the former FBI special agent, Stephanie Talamantez, who showed up repeatedly at the homes of nearly two dozen clients, pressuring them to sign declarations.
U.S. District Judge Ana Reyes, in the District of Columbia, has set a status conference for Dec. 19.
Keller Postman partners Warren Postman and Albert Pak, both in Washington, D.C., declined to comment.
Court papers claim the deal, which also required Tubi to update its privacy policies, is the largest VPPA settlement so far. Tubi has about 74 million subscribers but, unlike Hulu or Netflix, relies on advertising for its free streaming services.
Keller Postman represents nearly 24,000 class members who moved to opt out of the settlement and arbitrate their claims, specifically, alleging that by showing advertisers user data about their sex, gender or age, Tubi is violating California's Unruh Civil Rights Act. Four clients of Keller Postman also objected to the settlement on the same grounds.
Tubi, in filings last month, opposed the objections and called the opt-out claims "frivolous."
"Instead of simply excluding themselves so they could litigate their meritless arbitration claims, objectors seek to disrupt a nationwide settlement," Fox wrote.
Many of the opt-out claims had deficiencies; they were signed by Keller Postman or didn't have wet signatures, for instance, he wrote.
Postman responded, "Tubi's implication that Keller Postman had fabricated the signatures of thousands of clients and committed a wide-scale fraud on this court is outrageous and unprofessional."
Moreover, Tubi's attacks reveal "flagrant ethical violations by contacting Keller Postman's clients without Keller Postman's consent and misleading them into signing demonstrably false declarations."
Not only did Tubi's lawyers contact Keller Postman's clients, Postman wrote, but they did not inform the firm ahead of time about their plans to do so.
However, Fox insisted that the former FBI special agent verified whether the class members were still represented by an attorney before asking them questions.
"The mass arbitration for which it now seeks special treatment from this court, in the form of exclusions and release, is a farce," Fox wrote in a Dec. 3 reply. "This baseless attack is simply an effort to pull the court's attention away from Keller Postman's failure to obtain the informed consent of its clients, who do not have even a basic understanding of the claims filed in their names."
"Keller Postman's conduct is riddled with ethical violations from beginning to end," Jenner & Block special counsel Kelly Morrison, in Los Angeles, wrote. "In fact, Keller Postman is well aware that many of its arbitration demands will be fraudulent: Its marketing campaign is structured to avoid obtaining basic information that would weed out fraudulent claims."
The firm also failed to provide notice, according to the complaint, in order to file the arbitration claims ahead of the May 1 date when JAMS updated its mass arbitration rules, under which Tubi would only have to pay $7,500 in fees, rather than $48 million, the suit says.
Keller Postman moved to dismiss the suit, but last month, Tubi sought to amend its complaint after disclosing the findings of the former FBI special agent, who interviewed 22 of the 29 individuals who withdrew their arbitration claims. Most denied that Keller Postman ever represented them. Three denied filing a claim, two did not have Tubi accounts, and eight believed the claims pertained to a data breach. Only two understood the claims, but one of them actually wanted more targeted advertising from Tubi.
Several filed declarations.
On Dec. 9, Keller Postman opposed the amendment and filed its motion to disqualify Jenner & Block from the case, citing California's Rules of Professional Conduct.
"This flagrant abuse of represented lay parties by an adversary's attorney is sanctionable in any court in the country," Postman claimed. Many clients reported being misled, intimidated and harassed. Some felt frightened or threatened.
The motion seeks to have Jenner & Block removed from representing Tubi while striking the statements obtained by the former FBI special agent, plus related attorney fees.
Postman wrote, "The pattern of behavior here has all the hallmarks of a lawyer and law firm who believe they are above the law."