Tom Kidera guides clients through crisis. A Chambers-ranked litigator (General Commercial Litigation, New York (Band 6)), Tom brings a dogged dedication and creative energy to his clients and their needs. His clients attest that he applies "a real cerebral approach to whatever it is we're trying to accomplish," and that "you can tell he has gone down all the potential paths and thought through them."
A partner in the firm's Complex Litigation and Dispute Resolution group, and the Head of Orrick's New York Office, Tom represents the Firm's energy and infrastructure, financial services, and professional services clients in complex commercial litigations, arbitrations, and regulatory proceedings.
He is particularly sought-after on issues regarding force majeure and catastrophic market disruption, having served on a team of Orrick lawyers whose force majeure-related victory on behalf of long-time client, Hemlock Semiconductor LLC, was declared a Top 10 Business Case of 2010-2019 by the Michigan Bar Journal.
Tom represents Orrick's renewable energy and infrastructure clients in a vast array of commercial, warranty, and construction litigation matters throughout the U.S. and around the globe, previously having served as a member of the Orrick team that represented Hemlock Semiconductor (a leading producer of solar-grade polycrystalline silicon) in a host of litigations and proceedings arising from the breach of its long-term supply agreements by counterparties. His practice touches all types of renewable energy disputes from PPA litigation, to development and construction claims, to component supply and performance disputes, and everything in between.
In addition to representing his clients in courts and confidential arbitrations, Tom regularly provides pre-litigation counseling to Orrick's renewable energy and infrastructure clients, helping them manage their enterprise liability and pursue and defend claims through mediation and pre-dispute procedures, often resolving matters amicably before they devolve into full litigation or arbitration.
Tom also has litigated structured finance issues for his entire career, representing securitization sponsors and loan servicers in an array of litigations from securities fraud and loan repurchase disputes to ERISA and consumer class actions, also consulting and advising on the interpretation of securitization documents and events of default.
In addition, Tom represents audit firms and accountants in regulatory proceedings commenced by the SEC and the PCAOB along with related civil litigations. He has experience managing and conducting large scale internal investigations, liaising with regulators, remediating problems, and managing risk and liability in delicate circumstances.
Tom maintains an active pro bono practice representing asylum seekers and U.S. veterans seeking discharge status upgrades.
On February 6, the Second Circuit affirmed a trial court order dismissing repurchase and indemnification claims brought by the Federal Housing Finance Agency (“FHFA“), acting on behalf of U.S. Bank as Trustee, against GreenPoint Mortgage Funding Inc., predicated on allegations that mortgage loans sold by GreenPoint breached representations and warranties in the relevant loan purchase agreements. READ MORE
On February 9, the Court of Appeals of Ohio issued an order affirming a 2017 bench trial defense verdict for The Bank of New Mellon (“BNYM“) in a lawsuit filed by certain RMBS investors alleging that BNYM had breached its duties as trustee under certain pooling and service agreements.
The appellate court, in a lengthy opinion, affirmed findings by the trial court that (i) the pooling and service agreements imposed only limited pre-default obligations on BNYM as Trustee; and (ii) that those duties remained limited in this case, and were never heightened by law because plaintiffs failed to prove that BNYM had actual knowledge of specific breaches of representations and warranties on any particular loans and/or had received a notice of an event of default. The Court also affirmed the trial court’s finding that under the law, plaintiffs had to prove the existence and materiality of loan breaches on a case-by-case basis, rendering loan sampling an inappropriate method to calculate damages.
On February 11, Bank of America, Merrill Lynch, and Countrywide (together, “the Banks“) filed suit against the National Credit Union Administration Board (“NCUA“) in its capacity as liquidating agent or conservator to six credit unions who purchased MBS issued by the Plaintiffs. The suit arises from a 2013 settlement agreement between NCUA and the Banks after the six credit unions’ failure and subsequent liquidation or conservatorship. In the settlement agreement, NCUA agreed to use “good faith” and “best efforts” to obtain releases for the Banks in any actions that NCUA later pursued against third-parties involving the Banks’ MBS. Plaintiffs specifically allege that because NCUA failed to seek a release of the third-party entity’s indemnification claims against the Banks with respect to three settlements with two entities, the Banks were forced to pay to settle subsequent third-party indemnification demands. Plaintiffs also allege unjust enrichment, breach of the implied covenant of good faith and fair dealing, and violations of the Administrative Procedure Act., 5 U.S.C. §§ 702 and 706(2), due to the breaches.
On February 23, 2018, Judge Lorna G. Schofield of the United States District Court for the Southern District of New York rejected Plaintiffs’ objection to U.S. Magistrate Judge Sarah Netburn’s opinion and order denying Plaintiffs’ request to re-underwrite a sample of loans in RMBS trusts in order to establish liability and damages in their suits against HSBC Bank as RMBS trustee. Judge Schofield found no clear error in Judge Netburn’s opinion, which held that sampling cannot establish either damages or liability because the contract requires Plaintiffs to prove that HSBC breached its contractual obligations as trustee on a loan-by-loan basis. The opinion held that “a sampling is just that, and by definition cannot provide loan specific information as to any loan outside the sample.” [Sampling Order]
On March 7, 2018, New York Supreme Court Justice Marcy S. Friedman denied a motion by Morgan Stanley ABS Capital I Inc. (“Morgan Stanley”) to dismiss a claim by RMBS Trustee Deutsche Bank National Trust Company (the “Trustee”) for failure to notify the Trustee of alleged breaches of representations and warranties regarding the mortgage loans in an RMBS trust. As a matter of first impression, Justice Friedman ruled that a claim for failure to notify does not accrue until the defendant discovers a breach of representations and warranties and fails to promptly notify the Trustee. She rejected Defendants’ argument that failure to notify claims accrue on the closing date, at the same time as the underlying claim for breach of representation and warranty. The court further held, however, that the Trustee was not harmed by any failure to notify occurring after the contractual repurchase period has ended; in other words, after six years from closing. Justice Friedman also reaffirmed that a Trustee bringing a failure to notify claim ultimately would bear the burden to prove that the failure to notify caused it some form of compensable harm. [Order]
On March 6, 2018, New York Attorney General Eric T. Schneiderman announced that the State of New York has reached a settlement with RBS Financial Products Inc. f/k/a Greenwich Capital Financial Products, Inc. (“RBS“) to resolve potential claims against RBS under New York’s Martin Act and Executive Law arising from the structuring, underwriting, issuance, and sale of 44 RMBS Trusts and related Certificates by RBS and its affiliates between 2006 and 2007. The $500M settlement includes a $100M payment to the State of New York, an additional $400M paid in the form of consumer relief, and an agreement by RBS to acknowledge certain facts relating to its alleged misconduct between 2006 and 2007. Press Release. Settlement Agreement.
On March 2, 2018, Judge Louis L. Stanton of the United States District Court for the Southern District of New York granted in part and denied in part a motion by RMBS issuers and underwriters to dismiss five new claims asserted in a second amended complaint filed by the Federal Deposit Insurance Corporation (“FDIC“) as receiver for Colonial Bank. As previously covered, the FDIC’s initial and first amended complaints asserted claims for violations of Sections 11 and 15 of the Securities Act of 1933 (the “1933 Act“), alleging that defendants made, or controlled entities that made, untrue or misleading statements in registration statements relating to certain RMBS. The court dismissed the claims as time-barred, but the United States Court of Appeals for the Second Circuit reversed. After remand, the second amended complaint added five new claims under the Alabama Securities Act, Nevada Uniform Securities Act, and Section 12(a)(2) of the 1933 Act. Judge Stanton granted the defendants’ motion to dismiss as to the FDIC’s claims under the Nevada Uniform Securities Act and Section 12(a)(2) of the 1933 Act, on the ground that those claims were barred by applicable statutes of repose. Judge Stanton also granted the motion to dismiss as to the FDIC’s Alabama Securities Act claims against the defendant banks that served as depositors on certain RMBS certificates because FDIC did not allege that those defendants acted as sellers of the certificates, as required by law. The remainder of the claims survived defendants’ motion to dismiss. Order. Second Amended Complaint.
On August 8, 2017, Judge Charles S. Haight Jr. of the U.S. District Court for the District of Connecticut denied defendant’s motion for partial summary judgment in Law Debenture Trust Co. of New York v. WMC Mortgage. The court held that plaintiff may continue to pursue its failure-to-notify claim on loans other than the loans for which plaintiff had specifically notified WMC of alleged breaches. Judge Haight also declined to prohibit Plaintiff from using statistical sampling to prove liability and damages, although he did not find that such sampling would ultimately be sufficient to prove the plaintiff’s claim, and refused to grant defendant’s motion for summary judgment on the meaning of a “material and adverse” breach. Read the summary judgment order here.
On August 4, 2017, Judge Steven E. Martin of the Ohio Court of Common Pleas rendered a full verdict in favor of Defendant-Trustee The Bank of New York Mellon (“BNYM“) in Western and Southern Life Insurance Company, et al. v. The Bank of New York Mellon following a three-week bench trial.
Judge Martin held that plaintiffs failed to prove that BNYM’s conduct caused losses on the RMBS at issue, instead finding that any losses on the RMBS were caused by the fallout of the financial crisis itself, or by “potentially other entities” besides BNYM. The court also determined that plaintiffs’ methodology for establishing its alleged damages—by sampling a fraction of the loans at issue and extrapolating conclusions therefrom—was inappropriate given the applicable contracts. Echoing recent decisions in New York State and Federal Courts, Judge Martin found that “countless” provisions in the pooling and servicing agreements require plaintiffs to prove their claims loan-by-loan, rather than through sampling. Read the opinion letter here.
On August 4, 2017, Royal Park Investments SA/NV filed a proposed class action against Deutsche Bank National Trust Co. (“DBNTC“) in the U.S. District Court for the Southern District of New York, claiming that DBNTC—in its capacity as RMBS Trustee for ten trusts—is improperly using trust proceeds to finance its defense against separate litigation, brought by the same Plaintiff, alleging that DBNTC breached its duties as RMBS Trustee. Plaintiff’s complaint acknowledges that the relevant governing agreements contain language entitling DBNTC to indemnification under certain circumstances but argues that, nonetheless, New York law prohibits such indemnification where the indemnified costs are incurred in a lawsuit between the indemnifying parties. The complaint seeks an injunction barring DBNTC from further use of the trust’s assets to fund its litigation defense and asks the court to order an accounting of legal expenses recouped to date. Read the complaint here.
