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Advanced Deposition Techniques 2013


Speaker(s): James H.R. Windels, Kimo S. Peluso, Richard T. Marooney, Susan F. DiCicco, Todd B. Marcus
Recorded on: Jan. 24, 2013
PLI Program #: 43071

Kimo S. Peluso is a litigation partner in the New York office of Manatt, Phelps & Phillips, LLP.  Mr. Peluso's practice focuses on complex commercial litigation. He has extensive experience handing lawsuits arising from business and partnership disputes, government contracts, false advertising and unfair competition. Mr. Peluso is a regular lecturer on depositions and witness preparation. He has handled numerous trials and other hearings in state and federal courts and in arbitration, and has prepared witnesses for testimony in court, in administrative proceedings, and before the U.S. Congress. He holds a J.D. from Harvard Law School where he was the managing editor of the Harvard Law Review. Mr. Peluso served as a law clerk to the Honorable Amalya L. Kearse, U.S. Court of Appeals for the Second Circuit.


Richard Marooney is a partner in King & Spalding’s Business Litigation Group.  He is an experienced trial lawyer who has tried cases before juries, judges and arbitration panels.  His practice focuses on securities, general commercial and international disputes in the financial services and energy industries.

Mr. Marooney has served as a member of the Firm’s Policy Committee (management committee), and is co-head of the Firm’s Financial Institutions practice.  Mr. Marooney was a member of the Firm’s Associate Evaluation Committee from 2007-2009 and the Hiring Partner in the New York office from 2004-2006.  He is on the Chartis Panel Counsel list for securities litigation, and has been a New York Super Lawyer since 2009.

Recent matters handled by Mr. Marooney include:

Financial Services/Securities Matters

  • Defended Big Four accounting firm in an action by a hedge fund arising out of the failure of one of the largest providers of brokerage and clearing services in the international derivatives, currency and futures market;
  • Won a three week trial for Royal Bank of Canada and RBC Capital Markets in actions involving allegations of fraud, breach of fiduciary duty and aiding and abetting liability;
  • Represented GE Capital Corporation and other lenders in a lawsuit against former CFO of insolvent retailer concerning misrepresentations and accounting issues;
  • Won a defamation action on behalf of Julian H. Robertson, Jr. against internet bloggers;
  • Defended Banc of America Securities in seven week jury trial in the Southern District of New York involving alleged securities fraud regarding asset backed securities;
  • Achieved dismissal for Ambac in a lawsuit filed by the City of New Orleans arising out of a variable rate municipal bond issuance and related interest rate swaps;
  • Won a three day trial in New York Supreme Court on behalf of board of directors’ special committee in connection with shareholder derivative action concerning alleged breaches of fiduciary duty;
  • Defended the underwriter syndicate in a securities class action in connection with an equity offering of Majesco Entertainment Company;
  • Represented hedge fund company in connection with investigation by New York Attorney General concerning equity research practices;
  • Achieved early dismissal for the underwriter syndicate in a securities class action concerning an equity offering of Inspire Pharmaceuticals;
  • Represented Ramon Prats, former President of R&G Financial Corporation, in a securities class action in the Southern District of New York arising from alleged accounting irregularities relating to the sale of mortgages;
  • Represented an investment bank in connection with SEC and NASD investigations;
  • Achieved successful settlement of dispute between hedge fund company and former fund manager concerning covenants not to compete.

International Matters

  • Achieved dismissal for one of Russia’s largest financial institutions in a lawsuit in the Southern District of New York alleging RICO and securities fraud claims;
  • Defending an international private equity company in a lawsuit arising out of the sale of a natural gas storage facility;
  • Representing a subsidiary of KBR Inc. in an action to confirm an ICC arbitral award under the Panama Convention against Mexico’s oil exploration and production company;
  • Won a three week jury trial for Middle-Eastern private equity group in an action involving allegations of fraud, breach of fiduciary duty and other claims relating to Shari’ah compliant financial structure;
  • Secured dismissal of Middle-Eastern financial services company from lawsuits arising out of the 9/11 terrorist attacks;
  • Conducted an internal investigation on behalf of European company concerning alleged accounting irregularities relating to revenue recognition, return reserves and “channel stuffing.”

Energy Matters

  • Achieved successful resolution for energy trading company in a class action in the Southern District of New York concerning alleged market manipulation under the Commodities Exchange Act;
  • Advised private equity group in connection with its investment in a power project in Guatemala;
  • Represented an energy trading firm in class action litigation and FERC proceedings arising out of California’s energy crisis;
  • Achieved favorable resolution for refinery owner in contract dispute with major utility in connection with the marketing of electricity in the PJM transmission zone;
  • Achieved favorable jury verdict in two-week jury trial on behalf of independent power producer arising from a contract dispute with a leading energy trading company;
  • Obtained favorable resolution for independent power producer in a contract dispute with local municipality arising from the sale of electricity and thermal energy;
  • Won a three-week jury trial on behalf of nuclear power plant owner/operator in a contract dispute with co-owners concerning allegations that the owner/operator mismanaged the plant.

Mr. Marooney’s publications and professional appearances include:

  • Faculty Member for PLI’s Seminar and Live Webcast:  Advanced Deposition Techniques 2013 (January 2013).
  • Trio of Second Circuit Decisions Clarify FINRA Arbitrability, BNA Securities Regulation Law Report, February 20, 2012.
  • Not So Fast:  Mid-trial Juror Disqualification in Civil Cases Requires Careful Assessment, New York Law Journal, January 18, 2011.
  • Perspective:  Stop the Class Action Merry-Go-Round, New York Law Journal, May 17, 2010.
  • Panelist at King & Spalding’s March 2008 e-Learn seminar, “Current Developments in the Subprime and Capital Markets.”
  • Panelist at November 2006 E-Seminar by Andrews Publications, “Scheme Liability Under Federal Securities Law.”
  • Corporate Liability Under the Alien Tort Claims Act: United States Court Jurisdiction over International Torts, New York State Bar Association International Law Practicum, Spring 2004.
  • Panelist at November 2003 meeting of the American College of Investment Counsel, “Drafting Deal Documents: A Litigation Perspective.
  • U.S. Liability for Overseas Business Activities:  The Expanding Role of U.S. Courts Under The Alien Tort Claims Act, co-authored with George Branch and published at the Fifty-Third Annual Institute on Oil and Gas Law, 2002.

Mr. Marooney graduated with distinction from Hofstra Law School in 1994 where he was an associate editor on the Hofstra Law Review.  He received his Bachelor of Science in finance, cum laude, in 1991 from the Carroll School of Management Honors Program at Boston College. 

Mr. Marooney is admitted to practice in Federal and New York State courts.  He is a member of the Federal Bar Council.


Susan F. DiCicco litigates securities and complex commercial cases, principally representing financial institutions and hedge fund managers in cases throughout the country. She focuses on complex financial transactions and fixed-income products (particularly structured finance transactions). Susan regularly assists clients with trading issues and disputes, as well as assessing risks on new complex products and formulating strategies for existing transactions. Clients recognize Susan as a practical litigator who is fully versed in their businesses. Susan serves as the practice leader for the firm’s global Commercial Litigation practice.

In the securities defense field, Susan litigates securities class actions and a variety of cases asserting fraud claims under the 1933 Act, the 1934 Act and state blue-sky statutes. She recently obtained a full dismissal for the syndicate of underwriters in the putative class action arising from the Fairway Markets IPO (SDNY), as well as a full dismissal for the underwriters in a putative class action involving the EveryWare global secondary offering (SD Ohio), which was affirmed on appeal.  She currently represents a national organic grocer in a putative securities class action filed in Arizona. She also advises clients in several matters involving commercial and residential mortgage-backed securities, asset-backed securities, structured products, CDOs, CLOs, distressed debt trades, repos, whole loans, loan participations, and a variety of swaps and options.

In the complex commercial space, Susan handles a wide variety of litigation for institutional parties, including real estate disputes, banking litigation, lender liability litigation, bankruptcy litigation, and secured lending disputes. She also serves as national coordinating litigation counsel for a real estate investment manager.


TODD MARCUS is a commercial litigator with more than 26 years experience representing parties in commercial litigation in state and federal courts across the country. Much of his work involves real estate and finance-related litigation, including the enforcement of creditors’ rights and defending against lender liability claims and counterclaims. Todd has substantial experience litigating cases involving financial instruments (secured and unsecured), contentious mortgage foreclosures, and intercreditor disputes. Todd also has vast experience representing financial institutions in the foreclosure and workout of facilities secured by office buildings, land development projects, hotels, mixed-use projects, apartment buildings, and automobile dealerships, among other business assets. Todd also represents parties in real estate disputes and all other aspects of commercial litigation. Sound business judgment and result-oriented litigation strategies has earned Todd recognition by New York Super Lawyers magazine in Business Litigation every year since 2012. Todd has also been recognized in The Best Lawyers in America 2017.

Publications

  • Co-author, “Appellate Decision Unwinds Foreclosure Purchase,” New York Law Journal (August 23, 2015).
  • Co-author, “Distressed Real Estate Loan Dispute Resolution in 2012: Latest Developments, Trends and Strategies,” Inside the Minds: Real Estate Dispute Resolution (April 2012)
  • Co-author, “Residential Mortgage Foreclosure: It’s A Whole New Ballgame,” New York Law Journal (March 14, 2011)
  • Co-author, “A Primer on Today’s Commercial Loan Forbearance Agreement,” New York Law Journal (March 15, 2010)

Events

  • “Advanced Deposition Tools, Skills and Challenges for the Modern Age,” PLI’s Seminar and Live Webcast: Advanced Deposition Techniques (January 2013, 2014, 2015, 2016)


James H.R. Windels is a member of Davis Polk & Wardwell’s Litigation Department. Since joining Davis Polk in 1990 he has had wide experience in a variety of federal and state court commercial litigation matters, international arbitrations, regulatory enforcement proceedings, and internal investigations.

Mr. Windels’ matters include securities cases relating to public offerings and underwritings, sales and trading, asset management, mutual funds, private equity transactions and accounting matters. He has represented companies and accounting firms in internal investigations, bidders and targets in mergers and acquisitions litigation, and financial institutions and manufacturers in federal and state antitrust actions. He has also represented financial institutions and accounting firms in investigations and proceedings before the Securities and Exchange Commission, the Federal Reserve Bank, the Commodity Futures Trading Commission, the New York Stock Exchange, federal and state criminal authorities, and local regulators in Europe and Asia.

Mr. Windels joined Davis Polk in 1990, became a partner in 1997, and served as practice group coordinator of the Litigation Department from 2006-11. He clerked for the Honorable Peter K. Leisure, U.S. District Court for the Southern District of New York, from 1989-90. He is Chair of the Board of Directors of Volunteers of Legal Services and previously served as a member of the Executive Committee of the Association of the Bar of the City of New York and Chair of the Board of Directors of Brooklyn Legal Services Corporation A.