Richard Jacobsen, Deputy Head of Orrick's global Commercial Litigation practice, has litigated a wide variety of matters in federal and state trial and appellate courts, and in arbitrations before the AAA and LCIA. He has argued numerous appeals at the State and Federal levels and also has experience representing clients before federal and state regulators. He represents clients in diverse industries, including many that are highly regulated, such as the finance, pharmaceutical, biotechnology, chemical, computer and consumer goods industries. His past and present clients include Credit Suisse, Wyeth, The Dow Chemical Company, Microsoft, DISH Network, Amazon.com, and Acer Inc. Much of his practice involves the intersection of litigation and public policy advocacy.
A sampling of Mr. Jacobsen's representations is below.Commercial and Securities Litigation:
Mr. Jacobsen has substantial experience handling sophisticated commercial disputes between large companies. Examples include the following.
- Credit Suisse Securities (USA) LLC. Mr. Jacobsen is a senior member of the team representing Credit Suisse in connection with numerous lawsuits pending in New York Supreme Court, in which monoline insurers are seeking to deny coverage under financial guarantees covering residential mortgage-backed securitizations. Mr. Jacobsen also represents Credit Suisse in connection with over a dozen lawsuits brought by investors in residential mortgage-backed securitizations also pending in New York Supreme Court.
- Securities Industry and Financial Markets Association (SIFMA). Mr. Jacobsen represents SIFMA as amicus curiae in MBIA v. Countrywide, an appeal pending in the New York Appellate Division, First Department, involving key issues relevant to the lawsuits brought by monoline insurers against issuers of residential mortgage-backed securities.
- Yugoimport. Mr. Jacobsen represents Yugoimport, a foreign commerce enterprise based in Belgrade, Serbia, as lead counsel in an interpleader dispute with two successor nations to the former Socialist Federal Republic of Yugoslavia (the Republic of Slovenia and the Republic of Croatia) over ownership of Yugoimport's funds on deposit at the Bank of New York. This action implicates Federal common law principles concerning the presumption of separateness for foriegn instrumentalities, as well as the interpretation and application of the Agreement on Succession Issues, a foreign treaty between the successor states to the former Yugoslavia. On August 29, 2012, Mr. Jacobsen argued Yugimport's appeal of the District Court's rulings on summary judgment before the Second Circuit Court of Appeals.
- Microsoft Corp. In 2011 - 2013, Mr. Jacobsen defended Microsoft in an action alleging negligent misrepresentation concerning the purchase and installation of accounting and budgeting software. Mr. Jacobsen and the team successfully dismissed the claims against Microsoft, and the dismissal was affirmed by the New York Appellate Division, First Department, on February 14, 2013.
- Isochem North America LLC. In 2011-2012, Mr. Jacobsen defended Isochem North America LLC, a subsidiary of SNPE, SA, a French Societe Anonyme, in an action in the Federal District Court for the District of New Jersey. The case involved claims that Isochem breached a commission agreement with its North American distributor relating to the sale of a diesel fuel additive to ExxonMobil. Mr. Jacobsen and the team won a complete victory for Isochem on summary judgment in August 2012, only three months after the close of discovery.
- Centre Vinicole-Champagne Nicolas Feuillatte. In 2009-2010, Mr. Jacobsen represented Centre Vinicole-Champagne Nicolas Feuillatte (the best selling sparkling wine in France and the fifth largest seller in the United States) in defeating successive applications by its former exclusive U.S. importer and distributor for a temporary restraining order and, after expedited discovery, preliminary injunction that threatened to cripple CV-CNF's entire U.S. sales and distribution. This complex contract dispute was then settled before trial on terms favorable to CV-CNF.
- Acer Inc. In 2007, Mr. Jacobsen was a member of the Orrick team that represented Acer, one of the world's largest computer manufacturers, in which Orrick defeated plaintiffs' attempts to enjoin Acer's acquisition of Gateway Computers in multiple courts. In 2008, Mr. Jacobsen was a senior member of the team that represented Acer in a breach of contract action concerning Acer's right of first refusal to purchase Packard Bell pursuant to the terms of the merger agreement with Gateway. Acer ultimately purchased Packard Bell after settling the action on terms favorable to Acer.
- Excite@Home At his prior firm, Mr. Jacobsen was a member of the litigation team that represented Excite@Home in a multi-billion dollar breach of fiduciary duty and theft of trade secrets lawsuit against AT&T Corp. and others arising from their roles as controlling shareholders in the first company to provide high-speed Internet access via cable modem. In that case, the team obtained a US$400 million settlement on the eve of trial.
Vaccine Litigation: From 2006 - 2010, Mr. Jacobsen was a member of the team of Orrick litigators that served as national counsel to Wyeth (now Pfizer) throughout the United States in its defense of hundreds of product liability litigations concerning neurological injuries (such as autism spectrum disorders) allegedly associated with the use of the preservative thimerosal in childhood vaccines. He appeared in federal and state courts around the United States for Wyeth, and was a member of the Wyeth team that successfully attacked the general acceptance of plaintiffs' theories and the qualifications of each of plaintiffs' proffered expert witnesses in an action in Maryland state court. On December 21, 2007, Wyeth's motion to preclude the testimony of plaintiffs' expert witnesses was granted, and the trial court ultimately dismissed the case. In May 2009, the highest court of Maryland affirmed the trial court's decision, resulting in the voluntary dismissal of dozens of cases pending against Wyeth in Maryland. Outside the courtroom, Mr. Jacobsen has assisted Wyeth in responding to the numerous and well-coordinated attacks by advocacy groups and purported experts through the Internet and other media.
Product Liability: Throughout his career, Mr. Jacobsen has litigated numerous other product liability cases involving chemical and consumer products. Recent examples include the following.
- The Dow Chemical Company. Mr. Jacobsen represents The Dow Chemical Company in an action brought by the Suffolk County Water Authority pending in New York Supreme Court, Commercial Division, involving claims of groundwater contamination.
- Flexible Products. Mr. Jacobsen was a member of the trial team for Flexible Products, a subsidiary of the Dow Chemical Company, in a lawsuit in Tuscaloosa, Alabama. The plaintiffs were 1,400 coal miners who alleged respiratory injury from exposure to isocynate-containing products used in coal mines to prevent roof collapses and improve ventilation. After Frye motions, in limine motions and jury selection, the case was favorably resolved in September 2010.
- Palmer Cap-Chur Equipment, Inc. In January 2010, Mr. Jacobsen briefed, argued and ultimately secured summary judgment for a tranquilizer gun manufacturer in New York State Supreme Court, Kings County, in what was truly a bet-the-company litigation for this Georgia company.
Regulatory Actions: Mr. Jacobsen has represented numerous companies and individuals before federal and state regulators and law enforcement agencies, including the U.S. Securities and Exchange Commission and the United States Attorney for the Southern District of New York. For example, prior to joining Orrick, he successfully represented a publicly traded biotech company and a number of its officers and directors before the SEC and the SDNY. During the course of the investigations, Mr. Jacobsen personally represented the company's former CFO and the leader of the board's audit committee, the former general counsel of a large pharmaceutical firm, in multiple interviews with government prosecutors. The company was ultimately cleared of any civil and criminal liability.