David J. Fioccola

David J. Fioccola

Education

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

Bar Admissions

New Jersey
New York

David J. Fioccola is co-chair of Morrison & Foerster’s Financial Services Litigation Practice Group. He is a trial lawyer who focuses 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. His practice as a commercial litigator also includes a wide range of business disputes, including claims involving construction contracts, commercial leases, and licenses. He also regularly advises and defends Fortune 500 companies and financial institutions against claims involving violations of federal and state unfair and deceptive acts and practices statutes, federal banking laws and regulations, antitrust laws, and state-law claims for fraud (including consumer 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, the Office of the Comptroller of the Currency, the Federal Trade Commission, and the Securities and Exchange Commission, and state agencies, such as the New York Department of Financial Services and state attorneys general.

Mr. Fioccola has significant experience with the Consumer Financial Protection Act; the Unfair, Deceptive, or Abusive Acts and Practices Act (UDAAP); the Fair Credit Reporting Act (FCRA); the Fair Debt Collection Practices Act (FDCPA); the Servicemembers Civil Relief Act (SCRA); the RICO Act; the Truth in Lending Act (TILA); the Telephone Consumer Protection Act (TCPA); California’s Business and Professions Code § 17200; and various states’ consumer protection statutes. 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.

Mr. Fioccola also maintains an active pro bono practice. He is currently representing New York State inmates in a purported class action challenging the use of solitary confinement on constitutional grounds. This case has been widely reported in the press, including coverage in The New York Times. From 2007 through 2013, Mr. Fioccola served as the editor-in-chief of the N.Y. 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.

Mr. Fioccola is co-editor of MoFo ReEnforcement: The MoFo Enforcement Blog, providing insights and timely reports on enforcement and regulatory developments affecting the financial services industry.

Mr. Fioccola is a recommended lawyer by Legal 500 US 2014–2017 for his work in the Financial Services: Litigation practice area.

Ester Kelen v. Nordstrom, Inc., et al.
(S.D.N.Y.). Represented Nordstrom in a putative class action that alleged that Nordstrom’s disclosures in connection with its credit card accounts violated the Truth in Lending Act. Won motion to dismiss. (2016)
Regulatory Investigations
Represents Fortune 100 companies and financial institutions in regulatory investigations and enforcement actions by the Consumer Financial Protection Bureau, the Office of the Comptroller of the Currency, and the New York Department of Financial Services. (Ongoing)
South American Mining Dispute
Won multi-million dollar award for a major South American mining company in two-week ICC arbitration with an international contract miner in a dispute involving allegations of breaches of the master services agreement, and engineering, procurement and construction agreements. (2014)
In re Trilegiant Corporation Litigation
(D. Conn.).Won dismissal for 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. (2014)
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 over-limit fees as a violation of the Sherman Act and the National Bank Act.(2014)
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)
Shetiwy v. Midland Credit Management
(S.D.N.Y.) Won dismissal for major financial institution in RICO and FDCPA class action challenging credit card debt collection processes. (2013)
Ashwood Capital, Inc. v. OTG Management, et al.
(N.Y. Supreme Ct.) Won dismissal of contract-based claims against OTG concerning the operation of concessions at JetBlue’s Terminal 5 at JFK Airport. (2012)
Peoples v. Fischer, et al.
(S.D.N.Y.) Representing New York State inmates in a purported class action challenging the use of solitary confinement on constitutional grounds. This case has been widely reported in the press, including coverage in The New York Times. (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)
Ester Kelen v. Nordstrom, Inc., et al.
(S.D.N.Y.). Represented Nordstrom in a putative class action that alleged that Nordstrom’s disclosures in connection with its credit card accounts violated the Truth in Lending Act. Won motion to dismiss. (2016)
Regulatory Investigations
Represents Fortune 100 companies and financial institutions in regulatory investigations and enforcement actions by the Consumer Financial Protection Bureau, the Office of the Comptroller of the Currency, and the New York Department of Financial Services. (Ongoing)
South American Mining Dispute
Won multi-million dollar award for a major South American mining company in two-week ICC arbitration with an international contract miner in a dispute involving allegations of breaches of the master services agreement, and engineering, procurement and construction agreements. (2014)
In re Trilegiant Corporation Litigation
(D. Conn.).Won dismissal for 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. (2014)
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 over-limit fees as a violation of the Sherman Act and the National Bank Act.(2014)
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)
Shetiwy v. Midland Credit Management
(S.D.N.Y.) Won dismissal for major financial institution in RICO and FDCPA class action challenging credit card debt collection processes. (2013)
Ashwood Capital, Inc. v. OTG Management, et al.
(N.Y. Supreme Ct.) Won dismissal of contract-based claims against OTG concerning the operation of concessions at JetBlue’s Terminal 5 at JFK Airport. (2012)
Peoples v. Fischer, et al.
(S.D.N.Y.) Representing New York State inmates in a purported class action challenging the use of solitary confinement on constitutional grounds. This case has been widely reported in the press, including coverage in The New York Times. (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)

Mr. Fioccola is a recommended lawyer by Legal 500 US 2014–2017 for his work in the Financial Services: Litigation practice area.

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