Financial Services Appeals

One of the few appellate practices with a large New York presence, our Supreme Court & Appellate team is a natural leader in the financial services area.

Through our frequent representation of banks, other financial institutions, officers, directors, outside professionals, accounting firms, and corporations in high-stakes and high-profile appeals, we live and breathe the issues that concern financial services clients. And in recognition of our expertise in these areas, we are regularly called upon to assist with complex, critical trial-court litigation affecting the financial services sector.

As our clients are well aware, financial services appeals often involve high stakes, complicated facts, and elaborate legal and regulatory frameworks. Whether handling a multi-billion dollar residential mortgage-backed security case, defending a bank official in a precedent-setting civil fraud action brought by the U.S. government, or defending an accounting firm from claims of material omissions, we know how to achieve favorable results for our financial services clients at the appellate level. Success in this domain requires the ability not only to master extensive records and a specialized body of law, but also to distill and translate these intricacies into persuasive briefs and compelling oral presentations that will engage and persuade generalist judges (and their law clerks).

Our appellate team works seamlessly with co-counsel and other firm practice groups — including lawyers specializing in financial institutions, complex commercial litigation, securities litigation, insurance, and restructuring — to ensure that appellate issues are preserved and presented effectively.

Engagements
- Persuaded the Texas Supreme Court to overturn a three-judge Fifth Court of Appeals panel’s ruling for Credit Suisse in a $280M bungled land appraisal in a Las Vegas real estate development deal.
- Successfully convinced the Ninth Circuit to affirm the dismissal of a challenge to an exculpation clause approved by the bankruptcy court as part of a settlement and confirmation plan in Chapter 11 proceedings against our client, Credit Suisse.
- Persuaded Second Circuit to dismiss shareholder’s appellate challenges to Ocean Rig UDW, Inc.’s $3.7 billion cross-border restructuring.
- Won a “Market Moving Reversal” from the New York Court of Appeals for DLJ Mortgage Capital, a Credit Suisse affiliate, that significantly reduces its damages exposure in residential mortgage-backed securities (RMBS) litigation and will shape how RMBS claims play out in future cases. The Court of Appeals rejected the plaintiff’s effort to rewrite the contract that these sophisticated parties agreed to and resolved the appeal entirely in DLJ’s favor. The case will have a similar monumental impact on other pending RMBS litigation in New York Courts. For work on this matter, the Orrick team was named “Litigators of the Week” by The American Lawyer.
- Persuaded the Second Circuit to overturn a liability finding against a senior executive of Countrywide Financial, who had been ordered to pay a $1 million civil penalty in connection with the “Hustle” mortgage program. In an unprecedented enforcement action, the government tried to portray our client as the face of the subprime crisis and had secured crushing, career-ending penalties. But the Second Circuit panel unanimously agreed with our legal position, finding that this case was a massive government overreach.
- Obtained another important victory for DLJ Mortgage Capital, a Credit Suisse affiliate, in a high-stakes RMBS case in the New York Court of Appeals.
- Represented RBS in the appeal of a closely watched $800+ million securities fraud suit arising out of the mortgage crisis brought by the Federal Housing Finance Agency — one of the only subprime cases to go to trial.
- Successfully convinced the Second Circuit to affirm the dismissal of a securities fraud action against our client, a global accounting firm. We demonstrated that not only was our client one of the principal targets of the fraud perpetrated by a company they audited, but that they were also not complicit in any wrongdoing.
- Represented The Renco Group in a Second Circuit appeal challenging a $200 million dollar fraudulent conveyance judgment.
- Represented JPMorgan Chase Bank, N.A., in a Second Circuit appeal arising from the erroneous termination of a $1.5 billion loan in the General Motors bankruptcy
- Obtained industry-sustaining win for Bank of Utah, McKinsey & Co., and MIO Partners in an appeal that challenged the validity of the secondary market for life insurance policies
- Secured a precedent-setting victory for Morgan Stanley concerning the extent to which federal securities law preempts state labor laws
- Persuaded the Second Circuit to dismiss a putative class action filed against UBS by shareholders seeking $800 million in lost "merger premium" value resulting from a failed merger
- Represented a former General Counsel and CFO in an appeal that persuaded the Fifth Circuit to dismiss a securities enforcement action involving alleged stock option backdating, thereby deepening a split with the Second and the Seventh Circuits, which, in turn, led the U.S. Supreme Court to review the issue in a parallel case (Gabelli v. SEC)
- Represented First Republic Bank in a cert petition addressing when the statute of limitations for securities fraud claims should begin to run (resulting in the Supreme Court’s request for the Solicitor General’s views, followed by a cert. grant in Merck & Co. v. Reynolds)