David J. Fioccola

Partner

New York, (212) 336-4069

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Education

Seton Hall University (B.A., 1997)
;
New York University School of Law (J.D., 2000)

Practices

Financial Services Litigation

Securities Litigation, Enforcement + White-Collar Defense

International Arbitration

Bar Admissions

New Jersey
New York

David J. Fioccola is a trial lawyer for complex commercial matters, and co-chair of the firm’s Financial Services Litigation Practice Group. He focuses on complex civil litigation, with an emphasis on the defense of complex commercial disputes, consumer class actions and financial services litigation. In addition to trying cases in federal and state courts, Mr. Fioccola has successfully led clients through International Chamber of Commerce (ICC) and American Arbitration Association (AAA) arbitrations. He regularly advises and defends Fortune 500 companies and financial institutions against claims involving violations of the antitrust laws, the securities laws, federal banking laws and regulations, unfair and deceptive acts and practices statutes, and state-law claims for fraud and breach of contract. His practice includes the representation of clients before federal agencies, such as the Department of Justice, the Consumer Financial Protection Bureau, and the Securities and Exchange Commission.

Mr. Fioccola has significant experience with the Federal Arbitration Act; the Class Action Fairness Act (CAFA); the Consumer Financial Protection Act; the Unfair, Deceptive, or Abusive Acts and Practices Act (UDAAP); the Sherman Act; the Securities Exchange Act; the RICO Act; the Truth in Lending Act (TILA); and California’s Business and Professions Code § 17200. Mr. Fioccola also has experience in resolving complex electronic discovery issues. He is a member of Morrison & Foerster’s E-Discovery Task Force and regularly advises financial institutions on e-discovery issues and best practices.

Since 2007, Mr. Fioccola has been the editor-in-chief of the NY Litigator, a publication of the Commercial & Federal Litigation Section of the New York State Bar Association. He is also an executive committee member of the Commercial & Federal Litigation Section of the New York State Bar Association.

South American Mining Dispute

Representing major mining company in two-week ICC arbitration with international contract miner in multimillion-dollar dispute involving allegations of breaches of the master services agreement, as well as engineering, procurement and construction agreement. (ICC Arbitration Ongoing)

In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation

(E.D.N.Y.) Representing a major financial institution in federal antitrust class and individual actions alleging that the payment-card practices of the defendant card networks and financial institutions constitute an unreasonable restraint of trade and illegal monopolization, in what is likely the largest private antitrust suit ever brought. (Ongoing)

In re Trilegiant Corporation Litigation

Representing two major financial institutions in federal RICO purported class and individual actions alleging that online merchants and payment-card issuers conspired to exchange payment-card data to enroll consumers in discount membership programs. (D. Conn. Ongoing)

In re Late Fee and Over-Limit Fee Litigation

(N.D. Cal.) Won dismissal for a major financial institution in a class action challenging the imposition of late and overlimit fees as a violation of the Sherman Act and the National Bank Act. Case is currently on appeal before the Ninth Circuit. (Ongoing)

American Express v. Visa, et al.

(S.D.N.Y.) Favorably settled a matter for a major financial institution. Allegedly defendants violated the Sherman Act by conspiring to exclude American Express from the card-issuing and network services markets. (2006)

Ashwood Capital, Inc. v. OTG Management, et al.

Won dismissal of contract-based claims against OTG concerning the operation of concessions at JetBlue’s Terminal 5 at JFK Airport. Case is currently on appeal before the First Appellate Department in NY. (Ongoing)

Peoples v. Fischer, et al.

Representing New York State inmates in a purported class action challenging the use of solitary confinement on constitutional grounds. (S.D.N.Y. Ongoing)

Advocates for Children

Won two appeals working with Advocates for Children of New York challenging the New York City Department of Education’s decision to give more public school space to two charter schools. The decisions reaffirmed that the DOE must follow state law and cannot move or change space utilization for any schools—including those that serve children with the most severe disabilities—without full disclosure to affected communities and opportunity for public comment. (2010)