Richard Jacobsen

Richard Jacobsen, first-chair trial lawyer, Lead Partner of Orrick’s 450 lawyer litigation and disputes practice, leader of Orrick’s Financial Services Litigation practice and member of the firm’s 12-person Management Committee, represents many of the world’s largest financial services companies in complex and high-value litigation. For over two decades, Rich has successfully defended clients against hundreds of billions of dollars of claims, securing some of the most favorable settlements and trial and appellate victories that have set precedents and significantly impacted the finance industry and reduced his clients’ exposure. He is among the youngest partners to be named a New York Law Journal Distinguished Leader on the basis of his string of courtroom wins and record of leadership at Orrick.

• Engagements

  Financial Services Litigation

  Credit Suisse Securities (CS). Lead counsel for CS in RMBS cases in federal and state courts throughout the country, including in New York, Alabama, Massachusetts and Washington.

  • U.S. Bank Nat’l Ass’n, solely in its capacity as Trustee of the Home Equity Asset Trust 2006-8 (HEAT 2006-8) v. DLJ Mortgage Capital, Inc. (N.Y. Ct. App.) – Won a “Market Moving Reversal” from the NY Court of Appeals that significantly reduces CS’s damages exposure in RMBS litigation and will shape how the future of RMBS claims play out. In a precedent-setting decision, the court emphatically rejected the plaintiff’s effort to rewrite the contract that these sophisticated parties agreed to and issued a complete victory to CS on both the notice and damages issues. This decision vastly limits the scope of this action, likely reducing the loans at issue by over half. And it will have a similar monumental impact on much of the still-pending RMBS repurchase litigation in NY courts. For work on this matter, Rich and team were named Litigators of the Week by The American Lawyer.
  • U.S. Bank Nat’l Ass’n, solely in its capacity as Trustee of the Home Equity Asset Trust 2007-1 (HEAT 2007-1) v. DLJ Mortgage Capital, Inc. (N.Y. Sup. Ct., N.Y. Cnty.) – Lead counsel in a two-week trial in NY Supreme Court in January-February 2024 in a nine-figure breach of contract action. Only a handful of RMBS cases have gone to trial out of thousands filed since the global financial crisis of 2008, and Rich was lead counsel in two of those trials. Post trial briefs have been submitted and the parties are awaiting a decision.
  • MBIA Insurance Corporation v. Credit Suisse Securities (N.Y. Sup. Ct., N.Y. Cnty.) – Lead counsel in a two-week trial in NY Supreme Court in a highly publicized case brought by MBIA seeking over $700 million in damages after ten years of litigation. Only 6 RMBS cases have gone to trial out of thousands filed since the global financial crisis of 2008, and MBIA is the most recent one to do so (July-August 2019).
  • People v. Credit Suisse Securities (N.Y. Sup. Ct., N.Y. Cnty.) – Resolved the NY Attorney General’s $10 billion RMBS lawsuit for only $10 million, a resolution that reflected less than 0.1% of the damages alleged by the NYAG. As lead counsel, Rich personally negotiated the settlement with the NYAG in the latter half of 2019. All of the other major banks sued by the NYAG over RMBS settled cases with the NYAG for an average amount that was 25 times higher as a percentage of RMBS at issue.
  • Grewal v. Credit Suisse Securities (N.J. Super. Ct., Ch. Div.) – After replacing prior counsel, completing fact and expert discovery and arguing summary judgment, Rich successfully resolved the matter for far less than the $3 billion sought by the New Jersey Attorney General on the eve of trial.
  • Federal Deposit Insurance Corporation v. Bear Stearns Asset Backed Securities (S.D.N.Y.); Federal Deposit Insurance Corporation v. Chase Mortgage Finance Corporation (S.D.N.Y.); Federal Deposit Insurance Corporation v. Banc of America Funding Corporation (Ala. Cir. Ct.) – Lead counsel in numerous RMBS cases brought by the FDIC as receiver for failed banks, including in Alabama and New York.
  • Home Equity Mortgage Trust Series 2006-1 v. DLJ Mortgage Capital (N.Y. Sup. Ct., N.Y. Cnty.); Home Equity Mortgage Trust Series 2006-5 v. DLJ Mortgage Capital (N.Y. Sup. Ct., N.Y. Cnty.) – Petitioned to have the NY Court of Appeals hear an appeal on issues relating to permissibility of sampling in RMBS cases and pre-suit notice requirements, which have long been a major battleground in RMBS litigation. Only 0.3% of civil cases appealed to the intermediate appellate court are permitted to go on to the Court of Appeals. Rich served as lead counsel for CS on the appeal, which he leveraged pre-argument into a favorable resolution.

  Goldman Sachs. Lead counsel for Goldman Sachs in two actions pending in the United States District Court for the Southern District of New York concerning RMBS sponsored by Goldman. The plaintiff in both cases, the trustee for two RMBS trusts, alleges that Goldman breached representations and warranties made in the securitization documents for the deals concerning the characteristics of the securitized loans. The complaints seek repurchase by Goldman and damages for all purportedly breaching loans in the two trusts, which together had an original principal balance of over $1.5 billion. (GSAMP 2007-HE1 v. Goldman Sachs Mortg. Co. (S.D.N.Y.); GSAMP 2007-HE2 v. Goldman Sachs Mortg. Co. (S.D.N.Y.))

  UBS O’Connor Capital Solutions. Lead counsel for UBS O’Connor Capital Solutions and affiliated direct lenders in secured debt recovery cases in New York and California state courts.

  • Sanberg v. Clover Priv. Cred. Opps. Orig. (Levered) II, LP, No. 23SMCV01825 (Cal. Sup. Ct.) – In response to nine-figure claims improperly filed in California state court in violation of a governing forum selection clause, Rich and team obtained an immediate anti-suit injunction in New York state court ordering Plaintiff Sanberg to stay the California action.
  • Clover Priv. Cred. Opps. Orig. (Levered) II, LP v. Sanberg et al., No. 652063/2023 (N.Y. Sup. Ct.) – Within 24 hours of nine-figure claims being improperly filed in California state court in violation of a governing forum selection clause, Rich and team successfully sought an anti-suit injunction in New York requiring the California action be stayed. This initial victory was followed by an Amended Complaint seeking a $173 million deficiency judgment on behalf of the direct lender. Rich and team successfully dismissed each of defendants’ affirmative defenses and counterclaims, including those challenging the commercial reasonableness of the disposition of secured collateral, and are currently preparing for summary judgment.
  • Clover Private Credit Opportunities Origination (Levered) II LP v. AlHusseini et al., Index No. 653401/2023 (Sup. Ct. N.Y. Cnty. 2023) – Rich and team successfully enforced a $75 million International Swaps Derivative Association put option by filing suit in New York state court under CPLR § 3213 Motion for Summary Judgment in Lieu of Complaint. Despite a complex procedural posture, the court’s order granting the $75 million motion for summary judgment was issued less than two months after the case was brought. The action is ongoing at the appellate level.
  • Clover Private Credit Opportunities Origination (Levered) II LP v. AlHusseini et al., Case No. 23SMCP00623 (Cal. Sup. Ct. 2023) – After reducing a $75 million put option to judgment in New York state court, Rich and team have led enforcement efforts against the judgment-debtors, including, among other things, obtaining a court order requiring an $87 million bond in order to stay enforcement against California assets.

  Ocwen. Lead counsel for Ocwen for nearly a decade on matters concerning its servicing of loans in RMBS, including seven ongoing actions in federal and state courts across the country.

  • Triaxx Prime CDO 2006-1, Ltd. v. Ocwen Loan Servicing (S.D. Fla.) – Lead counsel in the litigation, through appeal, of a suit brought by Triaxx entities (three CDOs and their collateral manager) in the Southern District of Florida alleging that Ocwen’s mortgage servicing practices caused Triaxx $175 million in losses. After obtaining two dismissals on the grounds that Triaxx had transferred its right to bring the lawsuit to an indenture trustee, Rich and his team convinced the 11th Circuit to adopt all of Ocwen’s arguments.
  • Powell v. Ocwen Financial Corporation (S.D.N.Y.) – Lead counsel for Ocwen in a case of first impression, a massive ERISA class action in which the plaintiffs purport to represent a class of trustees of all ERISA benefit plans that held investments in securitized mortgages serviced by Ocwen over the past six years. Beyond its massive scale and the billions of dollars at stake, the case is the first seeking to hold the servicer of mortgages held by an RMBS Trust liable as a fiduciary under ERISA. If the plaintiffs prevail, it could represent a sea change in RMBS litigation. After the court issued an opinion setting the stage for resolution of the entire case on summary judgment following narrow and expedited discovery, Rich and his team secured summary judgement, completely dismissing all claims. The matter is currently on appeal to the Second Circuit.
  • Weiner v. Ocwen Financial Corporation (E.D. Cal.) – Lead counsel in a borrower class action in the Eastern District of California alleging numerous claims including RICO, California consumer protection statutes and fraud for purportedly fraudulently marking up the cost of Broker Price Opinions and Hybrid valuations. Ocwen has completed merits discovery, engaged in mediation, and developed an expert analysis showing that the damages were far less than the plaintiff anticipated – an argument confirmed by the court on summary judgment. Rich will serve as lead trial counsel.
  • Rhodeman v. Ocwen Loan Servicing (C.D. Cal.) – Lead counsel in a borrower class action pending in the Central District of California, alleging a series of claims based on improper valuation fees. Over the course of three amended complaints and four motions to dismiss, Ocwen has prevailed in dismissing most of the class action claims with prejudice, including all of the RICO claims and almost all of the fraud claims. This matter is still pending.
  • Ocwen Loan Servicing v. Fidelity Information Services (Cal. Sup. Ct.) – Lead counsel in Ocwen’s hard-fought case against FIS, a California-appointed monitor, in California Supreme Court. Ocwen alleged rampant fraud and malfeasance by FIS. After successfully defeating three motions to dismiss, Ocwen filed and won five motions to compel, conducted depositions of numerous former and current FIS employees, and amended its complaint. Shortly thereafter, the parties settled.

  Nationstar Mortgages, LLC d/b/a Mr. Cooper. Representing Nationstar in a breach of contract action pending in the Delaware Court of Chancery alleging that Nationstar failed to properly service and made misrepresentations regarding thousands of early buy-out loans.

  Jefferies. Lead counsel for Jefferies in a breach of contract action pending in the Commercial Division of NY State Supreme Court in which Jefferies seeks to enforce the obligation of several counterparties to close on a distressed debt trade for term loans in respect of a company going through a restructuring. This action has important repercussions for all financial institutions engaged in distressed debt trading and their ability to rely on binding trade confirmations.

  Citigroup Financial Products Inc. (CFPI). Lead counsel for CFPI in an action in the U.S. District Court for the Southern District of New York involving claims that CFPI’s counterparty refused to honor its contractual obligation to repurchase impaired bankruptcy claims it assigned to CFPI under an assignment agreement. (Citigroup Financial Products v. Plansee SE (S.D.N.Y.))

  Securities Litigation

  • In re loanDepot Securities Litigation (C.D. Cal.) – Representing underwriting syndicate led by Goldman Sachs, Bank of America, Credit Suisse, and Morgan Stanley in securities class action arising out of loanDepot’s IPO.
    
  • In re Rivian Automotive Securities Litigation (C.D. Cal.) – Representing underwriting syndicate led by Goldman Sachs, Morgan Stanley, and JP Morgan in securities class action arising out of Rivian Automotive’s IPO.
  • In re Robinhood Markets Securities Litigation (N.D. Cal.) – Representing underwriting syndicate led by Goldman Sachs and JP Morgan in securities class action arising out of Robinhood’s IPO.
  • In re SelectQuote Securities Litigation (S.D.N.Y.) – Representing underwriting syndicate led by Credit Suisse and Morgan Stanley in securities class action arising out of SelectQuote’s IPO.
  • Fagen v. Enviva (D. Md.) – Representing underwriting syndicate led by Goldman Sachs in securities class action arising out of Enviva’s secondary offering.
  • In re Block Securities & Derivative Litigation (S.D.N.Y.) – Representing Block and its executive officers in securities fraud class action related to data security incident.
  • Federal Deposit Insurance Corporation v. Bear Stearns Asset Backed Securities I, LLC (S.D.N.Y.) – Lead counsel for issuer and underwriter defendants in a private civil action brought by the FDIC alleging claims under the federal Securities Act related to RMBS. The action settled for an amount below known industry benchmarks.
  • Federal Deposit Insurance Corporation v. Chase Mortgage Finance Corporation (S.D.N.Y.) – Lead counsel for underwriter defendants in a private civil action brought by the FDIC as receiver for failed bank Colonial Bank. The FDIC asserted claims under the federal Securities Act and the Alabama and Nevada state securities acts related to approximately $90 million of RMBS. The action was favorably resolved after prevailing on a discovery motion to obtain production of a key document that was unfavorable to the plaintiff’s damages claims.
  • Federal Deposit Insurance Corporation v. Banc of America Funding Corporation (Ala. Cir. Ct.) – Lead counsel for underwriter defendants in a private civil action brought by the FDIC as receiver for failed bank Colonial Bank. The FDIC asserted claims under the federal Securities Act and the Alabama and Nevada state securities acts related to approximately $150 million of RMBS. After prevailing on key pretrial motions, within days before the commencement of a jury trial, Rich negotiated a successful resolution of the action at a level significantly below other known settlements by co-defendants.
  • Federal Home Loan Bank of Boston v. Ally Financial, Inc. f/k/a GMAC LLC (Mass. Super. Ct., Suffolk Cnty.) – Lead counsel for issuer and underwriter defendants in a private civil action brought by the FHLB Boston. The plaintiff asserted claims under the Massachusetts Uniform Securities Act, Chapter 93A of the Massachusetts General Law, and the state common law of misrepresentation related to approximately $420 million of RMBS. After obtaining a partial dismissal of the plaintiff’s claims at summary judgment, the case settled.
  • Federal Home Loan Bank of Seattle v. Credit Suisse Securities (USA) LLC (Wash. Sup. Ct., King Cnty.) – Lead counsel for issuer defendants in a private civil action brought by the FHLB Seattle. The plaintiff asserted claims under the Washington State Securities Act related to approximately $250 million of RMBS. The case settled prior to trial.
  • IKB Deutsche Industriebank AG v. Credit Suisse Securities (USA) LLC (N.Y. Super. Ct., N.Y. Cnty.) – Represented issuer and underwriter defendants in an action by individual investors asserting New York state common law fraud claims related to $97 million of RMBS. Rich successfully resolved the action during discovery.

  Securities Industry and Financial Markets Association (SIFMA).

  • Lead counsel for SIFMA as amicus in Ambac Assur. Corp. v. Countrywide Home Loans. In Ambac, on May 15, 2017, the NY 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 – a substantial victory for the RMBS defense bar.
  • Represented SIFMA as amicus curiae in MBIA v. Countrywide, an appeal before the NY Appellate Division, First Department, involving key issues relevant to the lawsuits brought by monoline insurers against issuers of RMBS.

  Bankruptcy Litigation

  Rich has represented creditors holding nine-plus figure claims against debtors in adversary proceeding trials and other complex bankruptcy proceedings before the most sophisticated bankruptcy courts in the country, having tried two such nine-figure cases in the past year. For example:

  • In re PhaseBio Pharmaceuticals. Lead counsel defending global drug development company SFJ Pharmaceutical, a Blackstone Inc. portfolio company, in an adversary proceeding brought by a chapter 11 debtor seeking to extinguish its co-development partner’s rights to the development program for a breakthrough drug valued at in excess of $2 billion in Phase 3 clinical trials so it could sell the program to a third party. After highly expedited litigation in the Bankruptcy Court for the District of Delaware, the night before trial Rich and his team secured the debtor’s agreement to transfer the program to our client, thus preserving the client’s investment and enabling the development program to continue.
  • Secured Creditor Holding $100+ Million Claim. Co-lead counsel representing secured lender UBS O’Connor in an adversary proceeding brought by two chapter 11 debtors and their non-debtor affiliates seeking to invalidate the lender’s right to collateral securing a nine-figure loan. Rich and the team pursued expedited fact and expert discovery, culminating in a week-long trial in the Bankruptcy Court for the Southern District of Texas, while also pursuing and defending appeals of bankruptcy court orders in parallel with ongoing litigation. Judgment in the adversary proceeding is expected soon.
  • In re Katerra Inc. Represented the joint liquidators of a UK-based financial services company in a chapter 11 bankruptcy filed by Katerra Inc. and its 32 affiliated debtors in the Bankruptcy Court for the Southern District of Texas. Rich and his team pursued nine-figure fraudulent conveyance claims against several Katerra entities in connection with various contracts executed in the months preceding Katerra’s petition. The matter was resolved in advance of trial.
  • Major Alternative Investment Manager and Portfolio Companies. Advises Blackstone Inc. and many of its portfolio companies on secured and unsecured claims and potential claims against counterparties entering bankruptcy around the country. Rich and his team investigate new bankruptcy petitions and potential claims, prepare and submit claims, and monitor pending claims to ensure that the clients’ interests are fully protected.

  Sports Betting and Online Gaming Litigation

  Rich also represents sports betting and online gaming entertainment companies in class actions, individual actions, and arbitrations throughout the country. Representative matters include:

  • Representing Caesars Entertainment subsidiary in putative false advertising class actions in New York and Illinois federal courts concerning Caesars Sportsbook’s new user promotion for its mobile sports betting app. Secured voluntary dismissal of two putative class actions in New York after briefing on motions to compel arbitration and to strike class claims.
  • Representing VGW, a major developer and publisher of online casino-themed social games, in putative class actions in Georgia and Florida alleging that VGW’s games are unlawful gambling and seeking recovery of all players’ in-game expenditures. Obtained an order from a Georgia federal court granting VGW’s motion to compel arbitration and to strike the class claims, and secured voluntary dismissal of two other putative class actions in Georgia and Florida after briefing on motions to compel arbitration and to strike class claims.
  • Representing VGW, Zynga, and Playtika in lawsuits and arbitrations brought under various states’ gambling loss recovery statutes, alleging that their online casino-themed social games are unlawful gambling and seeking recovery of all players’ in-game expenditures in various states. Obtained orders dismissing every single one of the gambling loss recovery arbitrations under AAA R-33.

  Other Commercial Litigation

  • adMarketplace (AMP). Lead counsel for AMP, a leading online search advertising marketplace, in multiple lawsuits in NY Supreme Court involving breach of contract and AMP’s claims of fraud and theft of trade secrets against multiple entities. (Trellian Pty v. adMarketplace (S.D.N.Y.), Bidtellect v. adMarketplace (N.Y. Sup. Ct., N.Y. Cnty.), adMarketplace v. John Doe No. 1 (N.Y. Sup. Ct., N.Y. Cnty.) (Ca. Sup. Ct., Marin Cty))
  • Yugoimport. 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 over ownership of Yugoimport’s funds on deposit at the Bank of New York. (The Bank of New York v. Yugoimport (S.D.N.Y.))
  • Microsoft Corp. Defended Microsoft in an action alleging negligent misrepresentation concerning the purchase and installation of accounting and budgeting software. Rich and the team successfully had the claims against Microsoft dismissed, and the dismissal was affirmed by the NY Appellate Division, First Department.
  • Isochem North America LLC. 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. Rich and the team won a complete victory for Isochem on summary judgment only three months after the close of discovery.
  • Centre Vinicole – Champagne Nicolas Feuillatte (CV-CNF). 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.
  • Excite@Home. Member of the team, earlier in his career, that represented the company in a multibillion-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

  • The Dow Chemical Co. Represented Dow in an action brought by the Suffolk County Water Authority in NY Supreme Court, Commercial Division, involving claims of groundwater contamination.
  • Flexible Products. Served as a senior member of the trial team for Flexible Products, a Dow subsidiary, in a lawsuit in Tuscaloosa, Alabama, that was settled favorably. The plaintiffs were 1,400 coal miners who alleged respiratory injury from exposure to isocyanate-containing products used in coal mines.
  • Wyeth vaccine litigation. Served as a member of the Orrick team that was 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.
  • Palmer Cap-Chur Equipment Inc. Secured summary judgment for a tranquilizer gun manufacturer in NY State Supreme Court, Kings County, in what was truly a bet-the-company litigation for this Georgia company.

  Regulatory Actions

  Rich 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 insurers.
  • 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.
  • Represented a publicly traded biotech company and a number of its officers and directors before the SEC and the SDNY. The company was ultimately cleared of any civil and criminal liability.