Siding with the arguments of an Orrick litigation team, the New York Court of Appeals today issued a precedent-setting decision for our client, Credit Suisse subsidiary DLJ Mortgage Capital, that has broad implications for other high stakes RMBS repurchase cases pending in the lower courts.
In a 6-1 decision, New York’s highest court rejected U.S. Bank’s efforts to recover damages for hundreds of purportedly defective loans it had failed to identify to DLJ in timely pre-lawsuit notices, holding loan-specific pre-suit notice was required under a contractual sole remedy provision. The Court described U.S. Bank’s arguments as “nothing more than an attempt to avoid the consequences of the sole remedy provision.”
Our team urged the appeals court to address this key issue to ensure sophisticated commercial parties remain confident agreed-upon contractual terms will be enforced by the courts. This ruling directly impacts many other pending RMBS repurchase cases because the provision it construed is standard across RMBS contracts. The win for DLJ also prevents U.S. Bank from recovering “accrued interest” that had not actually accrued on liquidated loans, further limiting DLJ’s potential exposure in the case.
Our team was led by partner Rich Jacobsen, who argued the case, as well as partners Paul Rugani and Danny Rubens and associate Jennifer Keighley.
Rich serves as lead counsel for Credit Suisse’s entire residential mortgage-backed securities (RMBS) docket in federal and state courts throughout the country. He is lead counsel for Goldman Sachs in two RMBS cases in the SDNY. For nearly a decade, he has been lead counsel for Ocwen Financial Services in all matters concerning its market-leading business servicing loans in residential mortgage-backed securitizations. He is currently lead counsel for Nationstar Mortgage LLC d/b/a Mr. Cooper in a breach of contract action pending in the Delaware Court of Chancery. Rich has also frequently represented companies with respect to disputes involving the distressed debt trading market, including Jefferies and Citibank, and frequently tries nine figure disputes in the most important bankruptcy jurisdictions in the United States for clients such as UBS and Blackstone.
He and his Orrick team bring to each representation a combination of deep financial markets knowledge, holistic litigation strategy and a problem-solving mentality. In an industry where many cases are settled, he has established a formidable record at trial and on appeal, while achieving regulatory settlements at a small fraction of the industry benchmarks.
Named Litigators of the Week by The American Lawyer for his representation of Credit Suisse that yielded a precedent-setting decision from the New York Court of Appeals that will change the future of RMBS litigation, clients laud Rich telling Chambers (2022), “He makes my job easier by deploying a combination of impeccable legal skill, excellent judgment and a knowledge of the financial services industry.” “I would recommend Rich to anyone.” (2024) "He makes my job easier by deploying a combination of strengths - impeccable legal skills, excellent judgment, knowledge of the finance sector and a formidable reputation." Echoing that praise, clients say (2021) “I would recommend Richard Jacobsen in the highest terms,” he is (2020) “an exceptional litigator” and “a master of navigating commercial disputes.” Chambers also reports that clients regard him as “a commercial disputes wizard.” Clients hold Rich in high regard, telling Legal 500 our commercial disputes team is (2021) “brilliant,” while the publication calls out his “business critical disputes” work for Credit Suisse and Goldman Sachs. Clients further endorse Rich when speaking to Legal 500, noting he (2020) “is always available and willing to do what is necessary in any situation. His knowledge of the industry and more importantly where we fit in the industry has paid tremendous dividends from a legal representation perspective. I have not dealt with an attorney from any other firm that had the combination of knowledge, ability, reputation and judgment that Rich has.” Another client called out Rich’s “razor sharp intellect” which sets him apart from other disputes and trial lawyers.
A first-chair trial lawyer recognized as one of Lawdragon’s 500 Leading Litigators in America, Rich has litigated commercial, securities and product liability disputes for clients in many other industries in venues across the country. His clients have included: Amazon, Caesars Entertainment, Inc., The Dow Chemical Company, Microsoft, DISH Network, Acer and Wyeth. He has argued numerous appeals at the state and federal levels and frequently represents clients before state and federal regulators. He has argued multiple times before seven of the eight current justices in the Commercial Division of New York’s Supreme Court, New York County, and has arbitrated before the American Arbitration Association and London Court of International Arbitration.
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