Jerome A. Madden (Jerry)

Principal

Jerome A. Madden (Jerry) has been involved in well over a hundred appeals in the federal circuit courts of appeals and has presented oral argument in all thirteen federal circuit appellate courts.  He has substantial first-chair trial experience, including successfully representing the United States in trials related to United States v. Winstar in which banks sought hundreds of millions of dollars in damages.

As counsel for an appellant, he has achieved a reversal rate of approximately 75%. For comparison, the reversal rate in 2015 for all civil cases decided by the federal circuit courts was approximately 15%.*

Jerry gained significant Supreme Court practice experience at Justice and FDIC working with the Office of the Solicitor General in four high-profile cases affecting the regulation of the nation’s approximately 7,000 banks.  See below and Litigated Cases.

Jerry earned his J.D. summa cum laude from the University of Dayton School of Law, where he was Editor-in-Chief of the Law Review, and earned a Masters in Law (LL.M.) degree from Georgetown University Law Center in securities and financial regulation.

After law school, Jerry was a law clerk to the Chief Justice of the Supreme Court of Ohio C. William O’Neill, also a former governor of the state. He began his legal practice in 1979 as a litigation associate at Cadwalader, Wickersham & Taft—an Am Law 100 firm—in its Washington, D.C. office, where he litigated disputes on behalf of national and international commercial clients.

In 1985, he accepted a position at the U.S. Department of Justice, Civil Division, Torts Branch, where he was a Senior Trial Counsel. He served as lead trial and appellate counsel for savings-and-loan-crisis (S&L crisis) cases, including representing the United States at the trial and appellate level in a landmark case alleging regulatory negligence related to controlling the day-to-day affairs of a failing thrift. The case was eventually decided by the Supreme Court in United States v. Gaubert.

In 1991, Jerry became a member of the Appellate Litigation Unit at the FDIC, where he was first chair counsel in numerous appeals throughout the United States. Besides United States v. Gaubert, he assisted the Solicitor General in drafting several merits briefs in the Supreme Court involving cutting-edge issues related to the banking industry:

  • Atherton v. FDIC (addressing the standard of liability applicable to directors and officers of the approximately 7,000 banks in the nation);
  • O’Melveny & Myers v. FDIC (addressing the extent to which a federal receiver has the same equitable defenses that could have been asserted against the bank before failure); and
  • FDIC v. Meyer (addressing whether a federal banking agency can be held liable in damages for violating the due process rights of a failed bank officer). See cases.

In 1998, he returned to Justice as a member of a team of trial and appellate attorneys defending the United States in breach-of-contract suits filed by several dozen banks related to Congress’s abrogation of regulatory capital contracts with banks that assumed failing thrifts and banks during the S&L crisis. He was lead trial and appellate counsel for the United States in Long Island Savings Bank, FSB v. United States in which the federal Circuit vacated a $430 million judgment on the basis of fraud in the inducement and prior material breach.

In 2006, Jerry joined the Office of the Comptroller of the Currency, where he assisted the Comptroller as “decisional counsel” in rendering a final decision in a cease-and-desist (C&D) and civil money penalty (CMP) enforcement action against a national accounting firm based upon allegations of professional malpractice in auditing a troubled bank involved in securitizing home loans. He also defended the OCC in an appeal from that decision in federal appellate court.

He assisted the Comptroller as “decisional counsel” in rendering a final decision in a C&D and CMP action brought against an attorney retained by a bank to probe whether bank insiders intentionally hid losses to the bank related to international bonds.

In 2010, Jerry returned to the FDIC, where he was the senior litigator assigned to FDIC Chairman Sheila Bair’s foreclosure working group in 2010-2011 responding to rampant foreclosure irregularities by banks, including “robo-signing.”

He also was lead appellate counsel for FDIC in several high-profile appeals, including representing:

  • FDIC as receiver for a failed bank that purchased residential mortgage-backed securities (RMBS) originated by Bank of America subsidiary Countrywide Financial Corporation;
  • FDIC as receiver for Washington Mutual Bank (WaMu) in an attempt by WaMu senior bondholders with $6 billion in allowed claims to intervene in a $1 billion plus contract dispute between JPMorgan and FDIC concerning WaMu’s RMBS liabilities;
  • FDIC as receiver in several appeals about whether FDIC, as receiver for failed banks, could recover on indemnification contracts between the banks and title insurance companies intended to protect the banks from fraud by the title companies’ closing agents;
  • FDIC as amicus curiae in a suit filed by the shareholders of Fannie Mae and Freddie Mac challenging the decision of the federal Housing Finance Agency (FHFA) to enter into an agreement with the Department of the Treasury whereby all of Fannie and Freddie’s net worth is being diverted to Treasury in connection with its purchase of preferred stock in 2008.
  • FDIC in its corporate capacity in Administrative Procedure Act (APA) suits challenging decisions prohibiting golden parachute payments to directors and officers of troubled banks that where substantially responsible for the condition of the banks;
  • FDIC in its corporate capacity in an APA suit challenging the application of the Volcker Rule promulgated by FDIC, FRB, and SEC under the Dodd Frank Act as applied to trust-preferred securities (TrUps).

In 2012, Jerry received the John Marshall Award for Outstanding Legal Achievement, presented by Attorney General Eric Holder. The John Marshall Award is the Department of Justice’s highest award for an attorney’s contributions to the mission of the Department of Justice and excellence in specialized areas of the law.

*http://www.uscourts.gov/statistics/table/b-5/statistical-tables-federal-judiciary/2015/12/31”  

EDUCATION

Georgetown University Law Center, Masters in Law (LL.M.) Securities and Financial Regulation

University of Dayton School of Law, Juris Doctor (J.D.) Summa Cum Laude
Highest Class Ranking
Editor-in-Chief, University of Dayton Law Review

Franciscan University, Bachelor of Arts (B.A.), American History

RECOGNIZED CONTRIBUTIONS TO THE LEGAL PROFESSION

The John Marshall Award for Outstanding Legal Achievement, presented by Attorney General Eric Holder (2012)

Professor Edward J. Kelly Franciscan University Alumni
Award for Leadership in Business, Law and Finance (2011)

2016 AV@ Preeminent TM Peer Review Rated by Martindale-Hubbell

AV Preeminent Rating

Highest Possible Rating in Both Legal Ability
& Ethical Standards
martindale.com

BAR MEMBERSHIPS

Ohio
District of Columbia

FEDERAL COURT ADMISSIONS

Supreme Court of the United States
United States Court of Appeals for the 1st, 2nd, 4th, 5th, 6th, 7th, 9th, 10th, 11th,  District of Columbia, and Federal Circuits
United States District Court for the District of Columbia

JUDICIAL CLERKSHIPS

Law Clerk to Chief Justice C. William O’Neill of the Ohio Supreme Court

Law Clerk to Acting Chief Justice Robert Leach of the Ohio Supreme Court

Law Clerk to Chief Judge Carl Kessler of the Montgomery County Court of Common Pleas in Dayton (as a law student)*

ADJUNCT PROFESSOR

Banking and Financial Institutions: U.S. Regulation
Washington School of Law at American University (2009-present)
Legal Writing and Introductory Advocacy
Washington College of Law at American University
Agency and Partnership Law
Columbus School of Law at Catholic University
Legal Writing and Introductory Advocacy
George Washington School of Law Agency and Partnership Law
Columbus School of Law at Catholic University (2005).
Legal Writing and Introductory Advocacy
George Washington School of Law (2000-2003)

TRIAL AND APPELLATE PRACTICE

Litigation Associate, Cadwalader, Wickersham & Taft, Washington, D.C. (Am Law 100)

Senior Trial Counsel, Torts Branch, U.S. Department of Justice, Washington, D.C.

Appellate Counsel, Appellate Litigation Unit, Federal Deposit Insurance Corporation, Washington, D.C.

Trial and Appellate Counsel, Commercial Litigation Branch, U.S. Department of Justice, Washington, D.C.

Trial and Appellate Counsel, Legal Division, Office of the Comptroller of the Currency, Washington, D.C.

Appellate Counsel, Appellate Litigation Unit, Federal Deposit Insurance Corporation, Washington, D.C. (2010 to 2016)

* Both the Ohio Rules of Civil Procedure and the Ohio Rules of Appellate Procedure are modeled after the Federal Rules