A sampling of Richard's representations is below.
Commercial and Securities Litigation: Richard has substantial experience handling sophisticated commercial disputes between large companies. Examples include the following.
- Credit Suisse Securities (USA) LLC.
Richard is a senior member of the
team representing Credit Suisse in connection with numerous lawsuits in New
York Supreme Court, in which monoline insurers MBIA, Ambac, Assured Guaranty
and Financial Guaranty Insurance Company have sought, and continue to seek, to deny coverage under financial
guarantees covering residential mortgage-backed securities (RMBS). Most
recently, in November 2016, Richard argued in opposition to MBIA’s motion seeking
summary judgment on nearly $100 million in damages under its breach of contract
claims. On April 3, 2017, the New York Supreme Court rejected MBIA’s arguments,
resulting in a complete victory for Credit Suisse. Also, Richard designed and implemented the
strategy contesting plaintiffs’ use of self-styled “confidential witnesses” in
the monoline cases. The strategy was successful, and resulted in unprecedented
victories for Credit Suisse, including holdings in MBIA v. DLJ et al. that: one such witness would be held in
contempt of court if he “set foot in New York”, and on a separate motion, that the
conduct exposed by Orrick would result in a Caldwell
instruction to jurors that they should assume bias on the part of the witnesses
relied on by MBIA. He also represents Credit Suisse in connection with
over a dozen lawsuits brought by investors in RMBS also pending in New York
Supreme Court. In all of Orrick’s RMBS
matters for Credit Suisse, Richard has designed and implemented its party and
third party discovery strategies.
- Mortgage servicing. Richard is lead counsel for one of the nation's
largest mortgage loan servicers on matters concerning its servicing of loans in
residential mortgage backed securitizations. He presides over all reviews
stemming from notices of events of default, and is currently lead counsel in an
action brought in the Federal District Court for the Southern District of
Florida by a hedge fund alleging breaches of representations and warranties in
numerous RMBS, as well as an action brought in California Superior Court
alleging rampant fraud and malfeasance by an entity appointed to review his
client’s servicing practices and processes.
Beginning in January 2015, Richard presided over the company's
response to a notice of event of default that resulted in an 18-month long
comprehensive review of the company's servicing practices and which culminated
in a 139-page report by a neutral financial advisory firm that concluded there
was no evidence to support any of the 11 allegations it examined. The
allegations, Orrick's response on behalf of the company and the positive
results of the review were widely reported in the media throughout the process
- Securities Industry and Financial Markets Association (SIFMA). Richard has
represented SIFMA as amicus curiae in numerous appeals involving RMBS litigation.
Most recently, Richard was lead counsel for SIFMA as amicus in Ambac Assur. Corp. v. Countrywide Home Loans. In Ambac,
on May 15, 2017, the New York Appellate Division, First
Department held that Insurance Law 3105 is inapplicable to a monoline insurer’s
claim for monetary damages, and does not alter the insurer’s burden of proving the
elements of justifiable reliance or causation.
This is a substantial victory for the RMBS defense bar. In its opinion,
the First Department expressly adopted Orrick’s arguments on behalf of SIFMA:
“We are persuaded by the arguments made by amicus curiae Securities Industry
and Financial Markets Association that sound policy reasons support our
conclusion. Ruling otherwise would inequitably allow Ambac to recoup the money
it paid out for loans that complied with all warranties, and for which there
were no misrepresentations, but which resulted in default due to the housing
market collapse or other risks Ambac insured against. By issuing the
irrevocable insurance policies, Ambac accepted the risk that an economic
downturn could cause the loans to default and trigger its obligation to pay.” Richard
also previously represented SIFMA as amicus curiae in MBIA v. Countrywide,
an appeal before 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.
- Citigroup Financial Products Inc. (CFPI). Richard is lead counsel for CFPI in an action pending in the U.S. District Court for the Southern District of New York (SDNY) involving claims that CFPI’s counterparty, Austrian-based Plansee SE, refuses to honor its contractual obligation to repurchase impaired bankruptcy claims it assigned to CFPI under an assignment agreement.
- adMarketplace (AMP). Richard was lead counsel for
adMarketplace (AMP), a leading online search advertising marketplace, in
multiple lawsuits in New York Supreme Court involving breach of contract and AMP’s
claims of fraud and theft of trade secrets against multiple entities. Within a month after being retained by AMP in
early 2017, Richard briefed, argued and reversed a number of rulings adverse to
AMP. The cases recently settled on terms
favorable to AMP.
- Yugoimport. Richard
represented 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 foreign 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. Richard argued Yugoimport's appeal of the district court's
rulings on summary judgment before the U.S. Court of Appeals for the Second Circuit.
Corp. In 2011 - 2013, Richard defended Microsoft in an
action alleging negligent misrepresentation concerning the purchase and installation
of accounting and budgeting software. Richard and the team successfully
had the claims against Microsoft dismissed, and the dismissal was affirmed by the
New York Appellate Division, First Department, on February 14, 2013.
North America LLC. In 2011-2012, Richard defended Isochem North America
LLC, a subsidiary of SNPE, SA, a French Société 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. Richard and the team won a complete victory for Isochem on
summary judgment in August 2012, only three months after the close of
Vinicole-Champagne Nicolas Feuillatte (CV-CNF). In 2009-2010, Richard
represented CV-CNF, 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.
Inc. In 2007, Richard 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, Richard 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.
- [email protected] At
his prior firm, Richard was a member of the litigation team that
represented [email protected] 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. The team obtained a
$400 million settlement on the eve of trial.
Product Liability: Throughout his career, Richard
has litigated numerous mass tort and product liability cases involving
childhood vaccines, and chemical and consumer products. Recent examples include the
Dow Chemical Co. Richard represented The Dow
Chemical Co. in an action brought by the Suffolk County Water Authority in New York Supreme Court, Commercial Division, involving claims of groundwater
Products. Richard was a senior member of the trial team for Flexible
Products, a subsidiary of The Dow Chemical Co., 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.
vaccine litigation. From
2006 to 2010, Richard 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, Richard has assisted Wyeth in responding to the
numerous and well-coordinated attacks by advocacy groups and purported experts
through the internet and other media.
Cap-Chur Equipment Inc. In January 2010, Richard
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: Richard has represented
numerous companies and individuals before federal and state regulators and law
enforcement agencies, including: the U.S. Securities and Exchange Commission; the
U.S. Attorney for the Southern District of New York; the New York
District Attorney’s Office; the New York Department of Taxation and Finance,
the New York Board of Elections and the California Department of Business
Oversight. For example:
- Lead counsel in representing a
publicly traded owner and operator of fitness centers in its dispute with the
New York Department of Taxation and Finance concerning tax treatment of captive
- Lead counsel for a leading New York
political consulting firm in responding to subpoenas and inquiries from the
U.S. Attorney for the Southern District of New York, the New York District
Attorney's Office and New York Bureau of Elections concerning federal and state
investigations into New York Mayor Bill DeBlasio’s fundraising activities.
- Prior to joining Orrick, Richard
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, he 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.