“Law firm Keller Postman moves to oust Tubi lawyers in epic mass arbitration showdown” —

• “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care to respect ethics rules prohibiting communications with represented parties when it tracked down people who had withdrawn arbitration demands against Tubi.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.”
• “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.”
• “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.”
• “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.”

“Attorneys – Letterhead – Client’s delinquent customers” —

• “Where a lawyer has asked whether a client can use the lawyer’s letterhead to send form letters to the client’s customers who have delinquent invoices, that would be a false and misleading communication in violation of Rule 7.1 of the Massachusetts Rules of Professional Conduct.”
• “‘It is not permissible for a lawyer to allow a client to send form letters on the lawyer’s letterhead to customers who have delinquent invoices. Similarly, it is not permissible for a lawyer to send letters to the client’s delinquent customers without performing a conflicts check and other due diligence customary when opening a new matter…”
• “‘It would of course be permissible for a lawyer to send out letters to a client’s delinquent customers, provided that before sending those letters the lawyer follows the procedures typically used when opening new client matters. First, for each of the client’s customers who is to receive a letter, a conflicts check must be done to confirm that the client’s customer is not a current client of the firm, … and is not a former client of the firm in the same or a substantially related matter…”
• “‘Second, the lawyer’s duty of competence requires the lawyer to make at least a preliminary inquiry into the legal and factual basis of the claims asserted by the client against the customer…”
• “‘Third, if the customer is not represented by counsel, the lawyer’s letter must make the lawyer’s role in the matter clear and avoid giving the customer legal advice… In addition, depending on whether the client’s customers are ‘consumers’ as defined under the Fair Debt Collection Practices Act, 15 U.S.C. §§1692-1692o (‘Act’), compliance with the Act may be required. …”
• “‘Finally, to avoid a possible violation of Mass. R. Prof. C. 4.2, it would be prudent for the lawyer to ask the client whether the customer receiving the letter is represented by counsel… Knowledge of the fact of the representation may be inferred from the circumstances.”
  Full text of the opinion here.