Case 16-132, Document 195, 10/17/2016, 1885739, Page1 of 37
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`16‐132‐cv
`United States v. Prevezon Holdings, Ltd.
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`UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
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`(Argued: June 9, 2016
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`August Term, 2015
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` Decided: October 17, 2016)
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`Docket No. 16‐132‐cv
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`Plaintiff‐Petitioner,
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`Defendant‐Respondent,
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`UNITED STATES OF AMERICA,
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`PREVEZON HOLDINGS LTD., PREVEZON ALEXANDER, LLC,
`PREVEZON SOHO USA, LLC, PREVEZON SEVEN USA, LLC,
`PREVEZON PINE USA, LLC, PREVEZON 1711 USA, LLC,
`PREVEZON 1810 LLC, PREVEZON 2009 USA, LLC, PREVEZON 2011 USA,
`LLC,
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`HERMITAGE CAPITAL MANAGEMENT LTD.,
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`Movant‐Petitioner.1
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`1 The Clerk of the Court is respectfully directed to amend the caption as above.
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`16‐132‐cv
`United States v. Prevezon Holdings, Ltd.
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`UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
`____________________
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`(Argued: June 9, 2016
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`August Term, 2015
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` Decided: October 17, 2016)
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`Docket No. 16‐132‐cv
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`____________________
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`Plaintiff‐Petitioner,
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`Defendant‐Respondent,
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`v.
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`UNITED STATES OF AMERICA,
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`PREVEZON HOLDINGS LTD., PREVEZON ALEXANDER, LLC,
`PREVEZON SOHO USA, LLC, PREVEZON SEVEN USA, LLC,
`PREVEZON PINE USA, LLC, PREVEZON 1711 USA, LLC,
`PREVEZON 1810 LLC, PREVEZON 2009 USA, LLC, PREVEZON 2011 USA,
`LLC,
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`HERMITAGE CAPITAL MANAGEMENT LTD.,
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`Movant‐Petitioner.1
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`1 The Clerk of the Court is respectfully directed to amend the caption as above.
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`Case 16-132, Document 195, 10/17/2016, 1885739, Page2 of 37
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`____________________
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`Before: POOLER, LOHIER, and CARNEY, Circuit Judges.
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`Appeal from United States District Court for the Southern District of New
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`York (Thomas P. Griesa, J.) from the denial of Hermitage Capital Management
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`Ltd.’s motion to disqualify counsel for Prevezon Holdings Ltd., Prevezon
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`Alexander, LLC, Prevezon Soho USA, LLC, Prevezon Seven USA, LLC, Prevezon
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`Pine USA, LLC, Prevezon 1711 USA, LLC, Prevezon 1810 LLC, Prevezon 2009
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`USA, LLC, and Prevezon 2011 USA, LLC.
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`This case presents the “extraordinary circumstances” necessary to grant a
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`writ of mandamus. We hold that the district court abused its discretion in
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`denying the motion to disqualify. Accordingly, we grant the petition for a writ
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`of mandamus and instruct the district court to enter an order disqualifying John
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`Moscow and BakerHostetler LLP.
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`Writ granted.
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`____________________
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`JACOB W. BUCHDAHL (Cory S. Buland, on the
`brief), Susman Godfrey LLP, New York, NY, for
`Movant‐Appellant Hermitage Capital Management
`Ltd.
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`Case 16-132, Document 195, 10/17/2016, 1885739, Page3 of 37
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`PAUL MONTELEONI, Assistant United States
`Attorney (Cristine Phillips, Margaret Garnett, Assistant
`United States Attorneys, on the brief), for Preet Bharara,
`United States Attorney for the Southern District of
`New York, for Plaintiff‐Appellee the United States of
`America.
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`MICHAEL B. MUKASEY (Jennifer F. Mintz, Jarrod L.
`Schaeffer, on the brief), Debevoise & Plimpton, LLP, New
`York, NY, for Defendants‐Appellees Prevezon Holdings Ltd.,
`Prevezon Alexander, LLC, Prevezon Soho USA, LLC,
`Prevezon Seven USA, LLC, Prevezon Pine USA, LLC,
`Prevezon 1711 USA, LLC, Prevezon 1810 LLC, Prevezon
`2009 USA, LLC, and Prevezon 2011 USA, LLC.
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`POOLER, Circuit Judge:
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`Appeal from United States District Court for the Southern District of New
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`York (Thomas P. Griesa, J.)2 from the denial of Hermitage Capital Management
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`Ltd.’s (“Hermitage”) motion to disqualify counsel for Prevezon Holdings Ltd.,
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`Prevezon Alexander, LLC, Prevezon Soho USA, LLC, Prevezon Seven USA, LLC,
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`Prevezon Pine USA, LLC, Prevezon 1711 USA, LLC, Prevezon 1810 LLC,
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`Prevezon 2009 USA, LLC, and Prevezon 2011 USA, LLC (together, “Prevezon”).
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`This case presents the “extraordinary circumstances” necessary to grant a
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`writ of mandamus, as Hermitage is without other viable avenues for relief and
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`2 On April 29, 2016, this case was reassigned to the Honorable William H. Pauley,
`III, United States District Court for the Southern District of New York.
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`the district court misapplied well‐settled law. Accordingly, we grant the petition
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`for a writ of mandamus and instruct the district court to enter an order
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`disqualifying John Moscow and BakerHostetler LLP from representing Prevezon
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`in this matter.
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`BACKGROUND
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`The underlying fraud.
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`The underlying litigation arises out of a 2013 civil forfeiture action (the
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`I.
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`“Forfeiture Action”) brought by the United States alleging that Prevezon
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`received the proceeds of a complex, sweeping scheme that defrauded the
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`Russian treasury of roughly $230 million (the “Russian Treasury Fraud”). The
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`government alleges Prevezon laundered portions of the fraud proceeds in New
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`York by buying various real estate holdings in Manhattan. We draw much of the
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`background section from the second amended complaint, and note that the
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`accuracy of the government’s allegations remains untested.
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`Hermitage, an investment advisory firm, is a victim of the Russian
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`Treasury Fraud. Hermitage advised the Hermitage Fund, an investment fund
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`that focused on investments in Russia. A group of corrupt Russian officials and
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`other individuals known as the “Organization” raided Hermitage’s Moscow
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`office and the office of its Russian law firm in 2007. During the raid, the
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`Organization stole corporate documents, including the official seals, of portfolio
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`companies controlled by the Hermitage Fund. This practice is known in Russia
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`as “reiderstvo,” or corporate raiding. The Organization used the stolen
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`documents to fraudulently transfer ownership of the portfolio companies to
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`members of the Organization. The Organization then forged faked contracts with
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`sham companies, creating the illusion that the portfolio companies owed nearly a
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`billion dollars to the sham companies. The sham companies sued the portfolio
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`companies. Lawyers purporting to represent the portfolio companies appeared
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`in these actions and admitted the portfolio companies’ full liability.
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`The fraudulent legal proceedings yielded judgments worth roughly $973
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`million for the Organization. The Organization then used the sham judgments to
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`apply for tax refunds on behalf of the portfolio companies on the ground that the
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`judgments represented losses that were equal to the profits reported by the
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`portfolio companies in the previous tax year. Since the faked losses fully offset
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`the profits, the portfolio companies were entitled to a refund of the taxes paid on
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`those profits. Two days after the refund applications were filed, refunds of
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`roughly $230 million were paid out by the Russian treasury to bank accounts
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`controlled by the Organization. A portion of that money was then wired to
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`various accounts controlled by members of the Organization in banks around the
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`world, requiring transfers of funds through the Southern District of New York.
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`As part of the laundering process, the funds were deposited into different bank
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`accounts in different countries multiple times. The government alleges that a
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`portion of those monies (roughly $3 million) were transferred into accounts in
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`Prevezon’s name. Prevezon then purchased real estate in Manhattan using
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`money that, at a minimum, was comingled with laundered proceeds from the
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`Russian Treasury Fraud.
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`II. Hermitage’s involvement with BakerHostetler.
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`When Hermitage learned of the fraud, it hired attorneys in Russia to
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`investigate, including Sergei Magnitsky. Magnitsky conducted an investigation
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`that discovered the fraud, and Hermitage ultimately filed six criminal
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`complaints with the Russian authorities. Hermitage and its lawyers instead
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`found themselves the focus of the criminal investigation. After Russian
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`authorities opened up a criminal case against two Hermitage lawyers who
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`drafted several of the legal complaints, the lawyers fled Russia. Russian
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`authorities also pursued criminal proceedings against Hermitage’s chief
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`executive officer, William Browder, and other Hermitage employees and
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`lawyers.
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`Magnitsky, who gave testimony against corrupt public officials alleged to
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`be members of the Organization, was arrested in November 2008. After 358 days
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`of pre‐trial confinement, Magnitsky became ill and died. Russia’s Human Rights
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`Council determined that Magnitsky’s arrest and detention were illegal, that on
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`the last day of his life Magnitsky was beaten by guards wielding rubber batons,
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`and that necessary medical care was withheld. The Public Oversight Commission
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`for the City of Moscow for the Control of the Observance of Human Rights in
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`Places of Forced Detention issued a report stating: “The members of the civic
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`supervisory commission have reached the conclusion that Magnitsky had been
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`experiencing both psychological and physical pressure in custody, and the
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`conditions in some of the wards of [the prison] can be justifiably called
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`torturous.”3
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`3 In December 2012, a new law went into effect in the United States. The Sergei
`Magnitsky Rule of Law Accountability Act imposes sanctions on those
`responsible for Magnitsky’s detention, abuse, and death. Pub. L. No. 112–208, 126
`Stat. 1496.The defendants here are not alleged to have participated in
`Magnitsky’s detention, abuse or death, but members of the Organization are,
`either directly, or by helping others avoid liability for their actions, or by
`financially benefiting from his detention, abuse, or death.
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`In September 2008, Hermitage hired attorney John Moscow of
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`BakerHostetler “[t]o help gather evidence for them to defend [Hermitage] in
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`Russia,” App’x at 192, and to try to interest the United States government in
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`investigating the fraud and reclaiming the fraud’s proceeds. BakerHostetler’s
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`retention letter described the scope of its representation:
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`In this engagement, we expect to perform the following:
`extensive analysis of the factual and legal background
`of the events in question; examination and analysis of
`evidence in both testimonial and documentary form,
`including the testimony of expert witnesses;
`preparation and presentation of prosecution
`memoranda, if appropriate, to the United States
`Department of Justice (or other law enforcement
`agency); and cooperation and support to the United
`States Department of Justice if an investigation is
`pursued by them.
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`App’x at 107.
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`BakerHostetler and Moscow represented Hermitage for roughly nine
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`months. During that time, Moscow and his colleagues reviewed non‐public
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`documents from Hermitage related to the Russian Treasury Fraud, which
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`allowed the firm to create a case timeline and chronology, and discussed
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`“potential individuals for depositions in connection with the prosecutions in
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`Russia.” App’x at 116. Moscow met with staff at the U.S. Attorney’s Office for the
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`Southern District of New York, including a lengthy meeting on December 3, 2008
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`with former Assistant U.S. Attorney Marcus Asner, and with the office of the
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`Attorney General in the British Virgin Islands. The firm also “review[ed] bank
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`records” and researched a “proper service agent for” a bank involved in routing
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`proceeds of the Russian Treasury Fraud.
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`BakerHostetler also drafted a twenty‐five page declaration in anticipation
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`of Hermitage seeking a Section 1782 subpoena, which allows a federal court to
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`order discovery in the United States “for use in a . . . foreign . . . tribunal,”
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`28 U.S.C. § 1782(a). The draft declaration, never before used in any court
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`proceedings and filed here under seal, details the Russian Treasury Fraud in a
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`manner that closely tracks the allegations of the civil forfeiture complaint
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`ultimately filed by the government. The draft declaration and complaint also
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`both describe the “Rengaz” or “Renaissance” fraud, a 2006 tax refund fraud
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`undertaken by the same criminal organization. That fraud involved subsidiaries
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`of Rengaz Holdings, an investment fund associated with Renaissance Capital.
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`The draft declaration and complaint allege that the same modus operandi was
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`used to perpetrate the Russian Treasury Fraud and the Rengaz fraud, such that
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`the government plans to introduce evidence at trial connecting the Rengaz fraud
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`and the Russian Treasury Fraud.
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`Hermitage paid BakerHostetler and Moscow nearly $200,000 in fees.
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`Hermitage terminated the relationship after roughly nine months and retained
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`new counsel. Its new counsel continued the investigation into tracing the
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`proceeds of the alleged Russian Treasury Fraud and provided its results to the
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`United States government. The government, in turn, conducted its own
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`investigation which led to it filing a civil forfeiture and money laundering action
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`against Prevezon in September 2013. Prevezon hired Moscow and
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`BakerHostetler to defend it against the government’s charges.
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`Hermitage filed a complaint with the Southern District of New York’s
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`Grievance Committee against Moscow and BakerHostetler, protesting Moscow
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`and BakerHostetler’s representation of Prevezon in light of their prior
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`representation of Hermitage. On August 7, 2014, the Grievance Committee
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`notified Hermitage it would take no action in the matter, without prejudice to
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`Hermitage pursuing the issue in district court. On September 29, 2014,
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`Hermitage moved for BakerHostetler’s disqualification, on the ground that
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`BakerHostetler and Moscow “switched sides” by first pursuing the perpetrators
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`of the Russian Treasury Fraud as counsel for Hermitage and then defending
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`those accused of committing the same fraud. BakerHostetler opposed the motion,
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`arguing that its representation was not adverse to Hermitage because both
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`Hermitage and Prevezon were innocent of any wrongdoing. When Hermitage
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`raised the possibility that BakerHostetler would defend Prevezon by arguing
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`that Hermitage committed the Russian Treasury Fraud, the district court
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`commented that it “seem[ed] . . . very, very speculative” and BakerHostetler’s
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`counsel called the allegation “simply untrue.” App’x at 175‐76. The district court
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`denied the motion, explaining that “[t]here is no indication that [Moscow] is in
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`any substantial way taking a position which involves an attack upon or an
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`attempt to hold liability with regard to Hermitage.” App’x at 297.
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`Following the close of discovery, the government moved for partial
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`summary judgment against Prevezon, seeking to establish that (1) the Russian
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`Treasury Fraud took place and (2) it qualified as a “specified unlawful activity”
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`to establish liability under federal law.4 In opposing the motion, Prevezon argued
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`4 To make out its case for money laundering, the government must prove the
`transactions at issue involved the proceeds of a “specified unlawful activity” as
`defined in 18 U.S.C. §§ 1956(a)(1), 1957(a). The government alleges that the
`“specified unlawful activity” is the Russian Treasury Fraud. The government
`also asserts it constitutes foreign bank fraud under 18 U.S.C. § 1956(c)(7)(B)(iii).
`The government also alleges that transfers of the proceeds of the Russian
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`that “[t]he manner in which the [Russian] Treasury Fraud was carried out . . . is
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`an essential element of the Government’s claims.” App’x at 445‐46. While it
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`previously argued that the Russian Treasury Fraud was “irrelevant” to its
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`defense, App’x at 221, Prevezon now argued that:
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`The version of the fraud on the Russian Treasury (the
`“Treasury Fraud”) told in the first, second and third
`complaints has been exposed by discovery to be false. It
`was contrived and skillfully sold by William F. Browder
`to politicians here and abroad to thwart his arrest for a
`tax fraud conviction in Russia. This public relations
`narrative was swallowed whole by the Government,
`which incorporated it into its complaint without
`investigation, a situation this Court has described as
`“troubling.” When placed under oath, however,
`Browderʹs own witnesses revealed that he authorized
`the supposedly unauthorized acts alleged in the three
`complaints and knew about the events that the
`complaints allege he was unaware of. From this
`discovery, it is plausible Browder stole the money from
`the Russian Treasury or, at least, knew about the fraud
`before it occurred. . . . This case is about fraud on the
`Russian Treasury; it is not about fraud on an investor or
`trustee of Browder’s Hermitage Fund. Shortening the
`trial by relieving the Government of its obligation to
`prove a Specified Unlawful Activity would deprive
`Defendants of an important, meritorious defense.
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`Treasury Fraud through the United States constitute transportation of stolen
`property in violation of 18 U.S.C. § 2314, and that earlier instances of money
`laundering served as predicate offenses for later money laundering transactions.
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`App’x at 445‐46. Prevezon further argued the record demonstrated that
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`“Browder and his agents engaged in a series of misrepresentations to execute the
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`fraud, to distance themselves from it, and to pin it on the Russian officials
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`investigating Browder for a separate tax fraud his companies committed.” App’x
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`at 449. At oral argument on the motion, Prevezon’s counsel stated: “[W]hat it
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`comes down to, Judge, is, the government alleges there was an organization,
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`unnamed, mysterious organization that did all this, and the evidence points that
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`Hermitage and Mr. Browder did it. That is the heart of the dispute.” App’x at
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`516.
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`The district court denied the partial summary judgment motion,
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`explaining that:
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`In my view the governmentʹs motion for partial
`summary judgment presents some points that are very
`well taken. In other words, there are certain things that
`are not in dispute. There are a lot of things that are hotly
`in dispute. But some things are not in dispute. And I
`keep referring and Iʹll refer to it again: the basic fraud in
`Moscow is not in dispute. It was committed. And $216
`million was stolen from Russia. That is not in dispute.
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`Now, the problem is, in trying to eliminate issues by
`granting partial summary judgment, the problem with
`that is, it isn’t that the government’s motion is not well
`taken, but it seems to me at the trial it will be necessary
`to put on evidence of that background. I cannot see a
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`Case 16-132, Document 195, 10/17/2016, 1885739, Page14 of 37
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`trial that does not start with the basic evidence about
`what occurred in Moscow.
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`App’x at 517‐18.
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`With the litigation headed for trial, on December 15, 2015, Hermitage again
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`sought BakerHostetler’s disqualification. The district court granted the motion on
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`December 18, 2015, without allowing Prevezon an opportunity to brief the issue,
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`stating that:
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`It is now clear that one of BakerHostetler’s primary
`defense strategies in the present case involves asserting
`that Hermitage had substantial responsibility for what
`is well known as the Russian Treasury Fraud. This is
`significant because the level of Hermitage’s
`involvement in fraudulent activity may make the
`difference between proving or not proving the
`commission of certain alleged specified unlawful
`activities as a foundation for showing money
`laundering, which is at the heart of the present case.
`Hermitage’s involvement was not previously at issue.
`Indeed, Moscow, who formerly represented Hermitage,
`took the position that Hermitage had “nothing to do”
`with the Russian Treasury Fraud. The case has now
`changed, in that it appears that BakerHostetler, and
`thus Moscow, is asserting that “the evidence points that
`Hermitage” was substantially involved in the Russian
`Treasury Fraud.
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`BakerHostetler’s change in defense strategy now makes
`the subjects of its former and current representation
`“substantially related.” There is now a very real
`possibility that BakerHostetler will be in a position
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`Case 16-132, Document 195, 10/17/2016, 1885739, Page15 of 37
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`where it would be trying to show that its current clients
`(the Prevezon defendants) are not liable and showing
`this by attacking its former client (Hermitage) on the
`very subject of BakerHostetler’s representation of that
`former client.
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`Special App’x at 1‐2 (internal citations omitted).
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`On December 21, 2015, Prevezon moved to certify an interlocutory appeal
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`of the disqualification order pursuant to 28 U.S.C. § 1292(b), and for a stay of the
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`district court proceedings pending appeal. The district court granted the motion
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`in its entirety the next day, before the government or Hermitage responded.
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`When the government objected, the district court sua sponte withdrew the
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`disqualification order, explaining that it erred in entering the order without
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`briefing by Prevezon and directing Prevezon to brief the issue.
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`Prevezon filed a brief opposing the disqualification motion. Hermitage
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`filed a reply brief and a supporting declaration from Bruce A. Green, a legal
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`ethics professor at Fordham University School of Law, who opined that
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`disqualification was proper. The government filed a brief advocating
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`disqualification, highlighting the risk of retaliation against Hermitage‐related
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`individuals from Russian authorities. The government noted that Browder, after
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`being barred from Russia, was prosecuted in absentia by Russia on charges of a
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`Case 16-132, Document 195, 10/17/2016, 1885739, Page16 of 37
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`separate Hermitage‐related tax fraud, and that Interpol declined to assist Russia
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`because the proceedings were “predominantly political in nature.” App’x at 603.
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`In addition, the Prosecutor General of Russia issued an open letter accusing
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`Browder of committing the Russian Treasury Fraud, along with other crimes,
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`and threatening further prosecution.
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`On January 8, 2016, the district court reversed its decision and denied
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`Hermitage’s motion for disqualification, concluding that “Moscow’s
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`representation of Prevezon does not pose a significant risk of trial taint.” United
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`States v. Prevezon Holdings Ltd., No. 13‐cv‐06326, 2016 WL 96170, at *1 (S.D.N.Y.
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`Jan. 8, 2016). The district court determined that there was no “substantial
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`relationship” between the subject matter of the two representations because the
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`Russian Treasury Fraud was “merely background information.” Id. at *4. The
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`district court explained:
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`As an initial matter, it is important to clarify what this
`case is not about. This case is not about Hermitage, nor
`is this case centrally focused on the Russian Fraud. Even
`if it were, to the court’s knowledge, Hermitage was
`never the target of a U.S. investigation for the Russian
`Fraud, let alone an actual lawsuit. In this way,
`Moscow did not “switch sides,” nor is he now accusing
`a former client of the “same crime” that he was
`“retained to defend against.”
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`Case 16-132, Document 195, 10/17/2016, 1885739, Page17 of 37
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`Moreover, the Russian Fraud is an ancillary issue in this
`suit. The Government does not allege that Prevezon
`committed the Russian Fraud. Rather, the Government
`has accused Prevezon of laundering proceeds of the
`Russian Fraud through the United States. The Russian
`Fraud is merely background information and
`Hermitage cannot be held liable as a result of this
`lawsuit.
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`Not only is the Russian Fraud a side issue in this matter,
`but Hermitage is also a mere spectator to this litigation.
`Hermitage is not a party to this suit and its rights are
`not directly at stake. Though Hermitage may be
`interested in the outcome of the case and in how its
`name is used at trial, these concerns do [not] warrant
`the drastic relief they seek.
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`Id. at *4‐5. Although the district court acknowledged the risk of legal action
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`against Hermitage and its officers by Russian authorities, it deemed that risk
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`both speculative and irrelevant to its consideration of the disqualification motion
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`because Hermitage was not a party to the instant litigation, and thus the district
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`court saw no risk of “potential taint to this trial.” Id. at *5.
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`Hermitage moved for a stay and sought to certify an interlocutory appeal
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`on January 11, 2016. The district court denied the motion on January 15, 2016.
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`With the government’s support, Hermitage then moved in this Court for a stay
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`pending appeal, or, in the alternative, a petition for a writ of mandamus. This
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`Court granted the stay motion on January 25, 2016.
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`Case 16-132, Document 195, 10/17/2016, 1885739, Page18 of 37
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`DISCUSSION
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`Collateral order doctrine.
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`We start, as we must, with the threshold question of subject matter
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`I.
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`jurisdiction. Generally, “[t]he courts of appeals . . . have jurisdiction of appeals
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`from all final decisions of the district courts of the United States . . . .” 28 U.S.C.
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`§ 1291. There are, however, a few “safety valves” that allow an appellate court to
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`“promptly correct[] serious errors.” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100,
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`111 (2009). One such safety valve is certification, which allows a district court to
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`certify an appeal pursuant to 28 U.S.C. § 1292(b) when it is “of the opinion that
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`[the relevant] order involves a controlling question of law as to which there is
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`substantial ground for difference of opinion and that an immediate appeal from
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`the order may materially advance the ultimate termination of the litigation.” 28
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`U.S.C. § 1292(b). Where, as here, certification is sought and denied, there are two
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`remaining safety valves: (1) an appellant may establish jurisdiction by
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`demonstrating that its appeal falls within the collateral order exception to the
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`final judgment rule, or (2) an appellant may petition for a writ of mandamus.
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`Hermitage first argues that this appeal falls under the collateral order
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`doctrine, which allows interlocutory appeals from a “small class” of district court
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`Case 16-132, Document 195, 10/17/2016, 1885739, Page19 of 37
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`orders “which finally determine claims of right separable from, and collateral to,
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`rights asserted in the action, too important to be denied review and too
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`independent of the cause itself to require that appellate consideration be deferred
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`until the whole case is adjudicated.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S.
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`541, 546 (1949). Collateral orders are those that “[1] conclusively determine the
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`disputed question, [2] resolve an important issue completely separate from the
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`merits of the action, and [3] [are] effectively unreviewable on appeal from a final
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`judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978) (footnote and
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`citations omitted).
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`While in this case “the possibility of reconsideration by the trial judge
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`cannot be dismissed as theoretical,” Firestone Tire & Rubber Co. v. Risjord, 449 U.S.
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`368, 381 (1981) (Rehnquist, J., concurring), we need not decide whether a
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`disqualification motion satisfies the “conclusive determination” requirement.
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`Nor need we consider whether Hermitage’s status as a nonparty renders the
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`order at issue “effectively unreviewable.” Instead, we find that the collateral
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`order doctrine does not apply here because the denial of a disqualification order
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`does not resolve an “important issue completely separate from the merits.” Id. at
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`375.
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`Case 16-132, Document 195, 10/17/2016, 1885739, Page20 of 37
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`The Firestone Court assumed, without deciding the issue, that the
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`disqualification question resolved an important issue separate from the merits.
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`Id. at 376. But in Richardson‐Merrell, Inc. v. Koller, the Supreme Court held that
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`“orders disqualifying counsel in civil cases are not completely separate from the
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`merits of the action.” 472 U.S. 424, 439 (1985) (internal quotation marks and
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`citation omitted). In Richardson‐Merrell the Court noted it “has expressly rejected
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`efforts to reduce the finality requirement of § 1291 to a case‐by‐case
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`determination of whether a particular ruling should be subject to appeal.” Id.
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`(citation omitted). It concluded that “[e]ven if some orders disqualifying counsel
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`are separable from the merits of the litigation, many are not.” Id. (noting that
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`“[o]rders disqualifying attorneys on the ground that they should testify at trial,
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`for example, are inextricable from the merits because they involve an assessment
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`of the likely course of the trial and the effect of the attorney’s testimony on the
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`judgment.”) (citation omitted). This reasoning applies equally to orders denying
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`the disqualification of counsel, and we adopt it here.
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`The final judgment rule “serves the important purpose of promoting
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`efficient judicial administration,” Firestone, 449 U.S. at 374, and avoids
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`“unreasonable disruption, delay, and expense” caused by multiple interlocutory
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`Case 16-132, Document 195, 10/17/2016, 1885739, Page21 of 37
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`appeals. Richardson‐Merrell, 472 U.S. at 430. As we have cautioned, “[t]he class of
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`collateral orders as to which interlocutory review is permitted under § 1291 must
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`remain narrow and selective in its membership, so that the collateral order
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`doctrine does not overpower the substantial finality interests that § 1291 is meant
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`to further.” Linde v. Arab Bank, PLC, 706 F.3d 92, 103 (2d Cir. 2013) (internal
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`quotation marks and citation omitted).
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`II. Mandamus.
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`We turn to Hermitage’s alternate request for relief: that if we find the
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`collateral order doctrine does not apply, we treat its appeal as a petition for a
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`writ of mandamus. See SEC v. Rajaratnam, 622 F.3d 159, 169 (2d Cir. 2010) (“Even
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`though we lack interlocutory jurisdiction to review the district court’s order, a
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`writ of mandamus may still be appropriate.”). The Firestone Court noted that
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`mandamus may be appropriate in “situations in which a party will be
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`irreparably damaged if forced to wait until final resolution of the underlying
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`litigation before securing review of an order denying its motion to disqualify
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`opposing counsel.” Firestone, 449 U.S. at 378 n.13. Indeed, our sister Circuits will
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`issue writs of mandamus to direct a district court both to disqualify counsel and
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`to
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