(The opinions expressed here are those of the author, a

columnist for Reuters.)

By Alison Frankel

Dec 11 (Reuters) - An already-vicious ethics battle

between Fox Corp's ( FOXA ) streaming subsidiary Tubi and mass

arbitration pioneer Keller Postman reached new heights of

vitriol on Tuesday.

Keller Postman filed a motion to disqualify and sanction

Tubi's lawyers at Jenner & Block, asserting that Jenner breached

California ethics rules by engaging an ex-FBI agent to interview

nearly two dozen Keller clients who had dropped their demands

for arbitration against Tubi.

Jenner knew the former claimants had been represented by

Keller Postman, Keller argued, but nonetheless sent an

investigator to interview them outside of the presence (or even

awareness) of Keller Postman lawyers.

Moreover, according to Keller Postman, Jenner's investigator

used harassing, deceptive and intimidating tactics - such as

implying that she worked for Keller Postman and refusing to

leave someone's home without a signed declaration - to squeeze

privileged and confidential information out of the former

claimants.

"This misleading and oppressive conduct would have violated

ethical rules even if the clients were no longer represented by

Keller Postman," the firm wrote in its motion to disqualify

Jenner. "It is doubly improper because the clients are still

represented."

In an email statement on Wednesday, Jenner & Block denied

any impropriety, describing its investigation as "ethical,

necessary and warranted."

The firm previously said in a court filing that it took care

to respect ethics rules prohibiting communications with

represented parties when it tracked down people who had

withdrawn arbitration demands against Tubi. Its investigator,

Jenner said in the filing, first asked the erstwhile arbitration

claimants whether they were still represented by Keller Postman

and only proceeded if they said they were not.

The context for this latest fusillade of accusations is

Tubi's request to file an amended complaint against Keller

Postman in its lawsuit before U.S. District Judge Ana Reyes in

Washington, D.C.

As my colleague Dave Thomas and I have previously told you,

Tubi sued Keller Postman last May, asserting that the law firm

improperly induced about 24,000 Tubi subscribers to demand

arbitration of claims that the streaming service violated a

California anti-discrimination law that has been interpreted to

prohibit age- and gender-targeted advertising.

Tubi's original complaint alleged that Keller Postman put

its own interests ahead of its clients' when it advised clients

to file arbitration demands without engaging in a contractually

mandated informal dispute resolution process.

The company also claimed that Keller Postman did a woefully

inadequate job of vetting its clients, asserting that about 40%

of the alleged subscribers demanding arbitration did not have an

email in Tubi's database or had not watched content from the

streamer in the relevant time frame.

That particular statistic came into question after some of

Keller Postman's clients sought to intervene in an Illinois

state-court class action over Tubi's alleged violations of video

privacy laws. I'll spare you the details of that dispute, but

what you need to know is that Tubi acknowledged an additional

database of customer emails that turned out to include

purportedly missing information about some of Keller's clients.

Tubi and Keller Postman have dramatically different views of

the significance of the second database. Tubi insists that it

doesn't much matter because thousands of Keller Postman clients

still cannot show that they signed up for Tubi accounts or

watched Tubi content. Keller, meanwhile, contends that the

revelation shows Tubi's accusations against the mass arbitration

firm were baseless, making the Fox subsidiary desperate

to distract attention away from its overblown assertions.

That brings me to Tubi's motion last month to file an

amended complaint. Tubi's proposed new complaint adds

information about the company's search of the second database

but insists that even after an additional search, its records

show that more than 7,000 Keller Postman claimants had filed

unjustified arbitration demands.

Tubi also disclosed, for the first time, that it had engaged

an investigator to interview claimants who had dropped

arbitration demands. The company said its investigator's

findings were alarming.

Of the 21 former claimants located by its investigator, Tubi

said, only three indicated that they were still represented by

Keller Postman. Nine of the remaining 19 said they were not

familiar with the firm. Three others said they knew of the firm

but did not think Keller had represented them in claims against

Tubi. Three others said they hadn't filed arbitration demands or

didn't know demands had been filed in their names.

Most of the former claimants, according to Tubi, did not

understand the basics of the targeted advertising claim. Some

thought the case involved a data breach. One even said he wanted

more targeted ads.

Not one of the former claimants, according to Tubi, was

aware of the streamer's informal dispute resolution requirement.

That fact, Tubi said in its proposed amended complaint, is

strong support for its contention that Keller Postman failed to

obtain informed consent from its clients when it skipped that

process and filed arbitration demands.

"What we know is simple and straightforward," Jenner said in

its statement on Wednesday. "Keller Postman brought thousands of

frivolous arbitration claims. They acted unilaterally and

without the informed consent of their purported clients."

In its filings on Tuesday, Keller Postman said Tubi's

depiction of these interviews cannot be trusted, both because

Jenner & Block improperly directed its investigator to contact

Keller clients and because the investigator bullied the former

claimants.

Jenner, according to Keller Postman, should have known that

the withdrawal of a claim does not end a client relationship. At

the very least, Keller said, Jenner was obligated to consult

with Keller before reaching out to people it knew to have been

Keller clients.

"It is becoming increasingly clear that the accusations

against Keller Postman by Tubi's counsel are an act of

projection," Keller said in a brief opposing the filing of

Tubi's amended complaint. "Instead of showing any misconduct by

Keller Postman, the new allegations show a shocking pattern of

unethical conduct by Tubi's counsel."

Warren Postman of Keller did not immediately respond to a

query on the new filings and Jenner's statement in response.

Reyes is scheduled to oversee a hearing in the case on Dec.

19. Don't count on a lot of holiday good cheer.

Read more:

Tubi tries to keep ethics case alive against mass

arbitration firm Keller Postman

Fox's Tubi sues law firm over 'manufactured' mass

arbitration claims