We secured unanimous affirmance of the dismissal of Black’s federal RICO lawsuit

On March 2, 2023, the United States Court of Appeals for the Second Circuit unanimously affirmed the dismissal of a federal RICO lawsuit filed against Apollo co-founder Josh Harris by fellow co-founder and former Apollo CEO Leon Black. The case stems from Black’s claims that Harris tried to destroy his reputation after (i) public revelations concerning Black’s close relationship with, and substantial payments to, convicted sex offender Jeffrey Epstein, and (ii) the filing of a separate state court lawsuit by Guzel Ganieva, in which she claims that Black (who does not deny the two had an affair) sexually assaulted her.

On appeal, Black did not dispute the merits of the district court’s 62-page decision granting defendants’ motions to dismiss. Rather, he claimed that the district court erred by denying him leave to file a second amended complaint during the pendency of the case and later by dismissing his first amended complaint with prejudice because the RICO claims were “glaringly deficient in fundamental respects.” The Davis Polk team argued that the district court acted well within its discretion when it (i) refused to allow Black to file a second amended complaint in the middle of briefing on defendants’ pending motions to dismiss, against the district court’s prior instructions, and then (ii) determined the first amended complaint was futile without addressing in detail the allegations in the previously rejected proposed second amended complaint.  

The Second Circuit panel unanimously upheld the district court’s rulings in a summary order that endorsed arguments made by Davis Polk in favor of affirmance. The Court agreed with Davis Polk’s position that there was no requirement that the district court explicitly reconsider Black’s proposed and previously rejected second amended complaint in dismissing the case with prejudice as futile. Moreover, the Court agreed with Davis Polk that because the futility determination was appropriate, any error with respect to the district court’s earlier denial of leave to amend was harmless. 

The Davis Polk litigation team included partner Paul Spagnoletti (who argued the appeal), counsel Lindsay Schare and associates Luca Marzorati and Roshaan Wasim. All members of the Davis Polk team are based in the New York office.

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