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

columnist for Reuters.)

By Alison Frankel

May 21 (Reuters) - WarnerMedia is seeking to disqualify

plaintiffs firm Zimmerman Reed from representing claimants in a

mass arbitration campaign against the entertainment

conglomerate, accusing the law firm's managing partner of

committing serious ethical breaches.

Warner's petition to disqualify, filed last week in New York

State Supreme Court, alleges that Zimmerman Reed managing

partner Caleb Marker and two other unnamed Zimmerman Reed

professionals engaged in deceit and dishonesty when they signed

up as claimants in identical mass arbitration campaigns against

the company by two different plaintiffs firms.

Warner contends that Marker and the other two Zimmerman Reed

professionals - an associate and a data analyst - were never

legitimate claimants but signed up as clients of Keller Postman

and Labaton Sucharow in order to "surreptitiously gain access to

information" to boost Zimmerman Reed's own mass arbitration

campaign.

The company claimed that as spurious mass arbitration

clients, Zimmerman Reed gained "improper insight" into how

Warner responded to demands and settlement offers from Keller

Postman and Labaton campaigns. Warner asserted that Zimmerman

Reed tailored its demands to reflect what it learned from the

other firms' efforts.

Zimmerman Reed partner Marker criticized Warner's petition

on Tuesday in an email statement. "WarnerMedia's complaint

appears to be filed solely to malign any counsel willing to

represent customers who challenge the company's privacy

invasions," the statement said. "In our view, the complaint is

replete with misrepresentations of matters that were previously

disclosed to all parties. The company's decision to misrepresent

these facts supports our belief that this petition was filed for

improper purposes."

Marker did not immediately respond to a follow-up query

about Warner's alleged misrepresentations.

WarnerMedia's lawyers at Loeb & Loeb did not respond to a

query on the petition.

The petition alleges that in 2023, Marker contacted Warner

and Discovery Digital, both affiliates of Warner Bros Discovery ( WBD )

, on behalf of about 70,000 purported clients who alleged

that the Discovery video streaming platform illicitly disclosed

their viewing history to Facebook parent Meta.

Zimmerman Reed claimed that Discovery's disclosures violated the

Video Privacy Protection Act, which includes statutory damages

of $2,500.

Marker did not inform Warner and Discovery, according to the

petition, that he and the other Zimmerman Reed professionals,

both of whom worked in the firm's mass arbitration practice,

were claimants in ongoing mass arbitration campaigns in which

Keller Postman and Labaton Sucharow accused the company's HBOMax

platform of violating the Video Privacy Protection Act.

Warner said in its petition that it uncovered the alleged

overlap by reviewing client lists provided by Labaton and Keller

Postman when they asserted arbitration demands. According to

Warner, Marker's name first turned up on a list of Labaton

claimants who sent a demand letter to the company in December

2022. The following month, Warner received a pre-arbitration

notice of dispute in which Keller Postman said it represented

Marker.

The petition argued that the only way to block Zimmerman

Reed from making use of its allegedly ill-gotten information is

to disqualify the firm from representing claimants in mass

arbitration against Warner.

The company also alleges that Marker and the other Zimmerman

Reed professionals probably breached their retainer agreements

with Keller Postman and Labaton by signing up with both firms to

pursue identical claims.

Labaton partners Jonathan Waisnor and Jonathan Gardner did

not respond to my query about the Warner petition.

Keller Postman partner Warren Postman said in a email

statement that it is "unsurprising and commonplace" that a small

number of claimants will choose to retain multiple law firms to

pursue arbitration demands. Postman faulted Warner for "pursuing

a tortured legal theory that reflects its desperation to throw

sand in the gears of an arbitration process it authored," adding

that the company has no legal standing to interfere with the

right of Zimmerman Reed clients to pick their counsel.

After initially informing Discovery that it represents

70,000 clients with Video Privacy Protection claims, Zimmerman

told the company in January that its original client list

contained a data error and that it in fact represents only about

12,200 claimants, according to the petition.

Warner counsel Evan Farber and Jay Musoff did not respond to

an email query.

The Warner petition is not the first time Zimmerman & Reed

has been sued by the target of a mass arbitration campaign. As

my Reuters colleague David Thomas reported earlier this year,

French skincare company L'Occitane accused the plaintiffs firm

in a Los Angeles federal court complaint of conspiring with

about 3,100 clients to manufacture frivolous website tracking

claims under California's Invasion of Privacy Act.

The law firm, according to the complaint, continued to

encourage prospective clients to visit L'Occitane's website

after the company informed Zimmerman Reed that it was not

authorized to access the site.

Zimmerman Reed vehemently denied wrongdoing, calling out

L'Occitane for baselessly accusing its own customers of a

conspiracy. The law firm asked U.S. District Judge Percy

Anderson to dismiss L'Occitane's claims under the Computer Fraud

and Abuse Act and, in a separate motion, to compel the skincare

company to arbitrate its dispute with Zimmerman Reed's 3,100

clients.

Last month, as Thomas reported for Reuters, the Los Angeles

judge denied Zimmerman's motion to compel arbitration, ruling

that the company was not subject to arbitration agreements with

consumers who merely visited its website -- and that Zimmerman

Reed failed to establish that its clients had even accessed the

site.

The judge also, however, dismissed L'Occitane's case against

the law firm and its clients. The Computer Fraud and Abuse Act,

Anderson held, does not apply when the operator of a public

website allegedly revokes authorization to access the site but

does not impose technological barriers to block unwanted

visitors.

Zimmerman Reed partner Marker said the firm intends to press

on with its clients' claims over alleged video privacy

violations by HBOMax and Discovery. "Without customer consent,

WarnerMedia shared their customers' video streaming history with

Facebook, which then sold that information to advertisers,"

Marker said. "We intend to keep focusing on that."

Read more:

L'Occitane defeats mass arbitration bid in fight with

consumer law firm

Law firm blasts L'Occitane case challenging mass arbitration

claims

L'Occitane sues US law firm over wiretapping law 'shakedown'