Jenner & Block Hits Back at Keller Postman in Dispute (1)

Jenner & Block is defending itself against allegations it hired a former FBI investigator to “harass” people who filed claims against its client, video streamer Tubi.

The firm’s Monday court filing is the latest salvo in a contentious dispute between Jenner and Keller Postman, which represents Tubi customers, with each firm accusing the other of misconduct.

Tubi in a May 31 complaint accused Keller of bringing thousands of frivolous arbitration claims against it for running ads that allegedly targeted users based on age and gender. Jenner responded on Monday to allegations it acted unethically in its investigation into the validity of certain claims.

Keller “seeks to divert the court’s attention from the troubling findings of Tubi’s investigation” by calling Tubi’s investigation unethical, the company said in the new filing. Tubi is seeking to file an amended complaint which includes new evidence that would bolster its case against Keller, the lawyers said.

“Tubi’s investigation was necessary, warranted, and conducted in an ethical manner, as shown by professional responsibility rules and case law,” they said.

Mass Arbitration Model

Tubi says Keller’s business model is to flood target companies with a tidal wave of arbitration claims to pressure them into settling rather than paying the legal costs of fighting the claims. Many companies’ terms of service state that customers must arbitrate any dispute and typically companies pay for customers’ initial filings, which can cost anywhere from $100 to $325 per case, in addition to case management fees and arbitrator compensation.

Thousands of the claims against Tubi are deficient, the company argues. Many of those claimants were never registered users based on email addresses provided in the arbitration claims, Tubi says.

An estimated 4,500 claimants didn’t register with Tubi under the email addresses listed in the claimant’s arbitration demands, according to Tubi. An estimated 600 claimants started the registration process but didn’t complete it, or didn’t watch Tubi content using the account linked to the email address during the relevant time period. Another estimated 2,500 claimants completed the account verification process but didn’t watch Tubi content using the associated account during the relevant time period.

Keller fired back in a motion to disqualify Jenner and a separate lawsuit against the firm last week, stating Jenner violated lawyer ethics rules by directing a former FBI investigator to coerce Tubi claimants into signing false declarations to support its case. Keller also claimed Jenner misled the court about the volume of claimants without registered Tubi accounts.

Keller called for sanctions against Jenner partner Brandon Fox, who leads the firm’s Los Angeles office.

Managing partner Warren Postman, one of the lawyers defending the firm, declined to comment on the ongoing litigation.

‘Never Pressured Anyone’

Jenner first revealed it hired a former FBI agent to interview 22 of the 29 claimants who had withdrawn arbitration demands against Tubi in a Nov. 25 proposed amended complaint. Some former claimants said they weren’t aware of being represented by Keller Postman or having claims against Tubi, according to Jenner.

Keller seized on the interviews in a Dec. 9 motion to disqualify Jenner and oppose its motion to file an amended complaint. Keller said the investigator interviewed the claimants without the knowledge of their counsel at Keller and coerced them into making false statements. Keller included exhibits by claimants asking to withdraw their previous statements.

Although Jenner claimed the investigator only interviewed withdrawn claimants, Keller said its client relationship with the withdrawn claimants didn’t end once their claims were withdrawn. “Jenner’s response ignores what every lawyer knows: counsel can represent clients in a ‘matter’ regardless of whether a pleading has been filed or withdrawn,” Keller said in a Dec. 9 court filing.

The former FBI investigator hired by Jenner to interview the withdrawn claimants, Stephanie Talamantez, declared in the Monday filing that she ended every interview with a claimant who claimed to still be represented by Keller Postman. Talamantez also denied asking the withdrawn claimants to sign declarations at their initial meetings.

“I never pressured anyone into signing a declaration, and I told them all that doing so was voluntary,” Talamantez stated. “I also asked them to review the declaration and advised that they should only sign it if what was stated in the declaration was accurate.”

‘Fundamentally Flawed’

Jenner analyzed Tubi’s registrations to build a case that Keller failed to vet its claimants. But Jenner’s analysis came under question after claimants represented by Keller filed a petition to intervene in a separate Illinois state court case over allegations of Tubi’s alleged breach of video privacy laws.

In that case, Jenner’s Fox filed an affidavit stating one of the claimants never registered an account using his email address, a claim disputed by a confirmation email received by the claimant filed by Keller as an exhibit.

“After being caught red-handed, Tubi must now admit its original search—the basis for this lawsuit—was fundamentally flawed,” Keller said in a court filing.

Tubi said Monday the individual received the verification email but didn’t click the email’s link to verify his email address and the individual’s device never received advertising from Tubi.

Upon learning of the individual’s confirmation email, Tubi said it conducted a “supplemental investigation” of a second database that found 32% of Keller’s claims were fraudulent, according to Tubi’s proposed amended complaint.

“Tubi acted appropriately in moving immediately for leave to amend its complaint,” Tubi said in Monday’s filing.

Tubi also stated its response to Keller’s call for disqualifying Jenner & Block would be filed “in due course.”

Jenner & Block specializes in corporate litigation and transactions, raking in $582 million in revenue last year, according to data published by the American Lawyer. Keller Postman is known for bringing mass actions in multiple jurisdictions on behalf of plaintiffs.

The case is Tubi v. Keller Postman, D.D.C., No. 24-cv-01616, 12/16/2024