Don’t Wait for the Appeal to Bring in Appellate Counsel
Andrew Silverman is an appellate specialist who focuses on high-stakes and precedent-setting appeals in the U.S. Supreme Court, federal courts of appeals, and state appellate courts. A distinguishing feature of Andrew’s practice is that clients routinely call on him before the appeal. Andrew works with clients and trial court teams both to prevent any need for appeal by winning the case first and to ready the case for appeal by perfecting critical appellate issues and teeing them up in the most favorable posture for appeal. Andrew has brought these special skills to bear for some of the world’s largest companies in their most important cases, including for Oracle (against Google), PricewaterhouseCoopers (against MF Global), and Dow AgroSciences (against Bayer CropSciences).
Drawing on his years of experience as a trial attorney in the Civil Division of the U.S. Department of Justice, Andrew collaborates with the trial court team to serve as the point person for legal issues and strategy. In cases where the stakes are so high that an appeal is practically inevitable, Andrew is frequently brought in from the outset to work on motions to dismiss, preliminary-injunction briefing, and, later, summary-judgment motions. If the case proceeds toward trial, Andrew leads strategizing and briefing on jury instructions, motions in limine, Daubert motions, other pre-trial briefing, mid-trial objections and motions practice, motions for judgment as a matter of law, and motions for a new trial. He also readies the case for possible appeal by perfecting the record and significant appellate arguments to ensure they are reviewed on appeal under the most favorable standard possible.
Andrew also has a strong record on appeals, including in major appeals for Oracle (against Google), Synopsys (against Mentor Graphics), Boiron (as part of a class action settlement), and a Thai Professor, Supap Kirtsaeng (against John Wiley & Sons, Inc.). In appellate cases, Andrew takes pride in collaborating with his client to rethink the case from top to bottom, searching for new and different ways to present even the most complicated arguments as plain common sense, and drafting a storytelling version of the case that hooks the reader from the beginning. Andrew, like the rest of the Orrick team, emphasizes oral argument, working tirelessly to develop themes specifically for oral argument that magnify --- rather than merely parrot --- the arguments in the briefing. Andrew has worked on appeals at all levels, across areas of law, and for plaintiffs as well as defendants.
Andrew clerked for then-Chief Judge Dennis Jacobs of the U.S. Court of Appeals for the Second Circuit. Andrew was named a “Rising Star” by Super Lawyers in 2014, 2015 and 2016.
Trial Court Engagements
Oracle America, Inc. v. Google – Federal Circuit & N.D. Cal. – In what has been dubbed “The World Series Of Copyright Suits,” Andrew led the briefing team for the retrial of Oracle’s long-running, bet-the-company lawsuit alleging that the Google’s Android operating system infringes Oracle’s copyrights in the world-renowned Java computing platform. Specifically, Andrew ran point on all pre-trial, mid-trial, and post-trial briefing, including jury instructions, motions in limine, Daubert motions, trial objections, motions for judgment as a matter of law, and a motion for a new trial. Andrew was also one of the primary attorneys on the appellate team that, first, secured a decision from the Federal Circuit that Oracle's software is copyright protected and, second, obtained a decision holding that Google's copying was infringement as a matter of law. Notably, both decisions reversed earlier district court judgments; the copyright ruling reversing the district court's finding that Oracle's source code is not copyrightable and the infringement ruling overturning a jury verdict for Google on "fair use."
MF Global v. PricewaterhouseCoopers - S.D.N.Y. – In litigation stemming from the high-profile collapse of MF Global, Andrew was brought onto the case to assist a trial team from another firm in representing PwC against a $3B accounting malpractice suit by the bankruptcy estate of MF Global. In the lead up to trial, Andrew worked with co-counsel on jury instructions, motions in limine, Daubert motions, and other pre-trial motions. During trial, Andrew assisted on mid-trial objections, a motion for a mistrial, and a motion for judgment as a matter of law. Owing in part to the legal victories throughout trial, three weeks into a five-week trial, the case settled to the mutual satisfaction of the parties.
Bayer CropScience v. Dow AgroSciences – Federal Circuit and D. Del. – Andrew was part of a trial court team that obtained a complete victory at summary judgment for Dow AgroSciences after Bayer brought a patent-infringement suit in an attempt to prevent Dow from releasing what it hopes will be its flagship product: a soybean that is tolerant to three different herbicides. In addition to obtaining summary judgment, Andrew led the briefing in successfully defeating Bayer's motion for a preliminary injunction and in obtaining $6M in attorneys’ fees for Dow, one of the largest (if not the largest) attorneys’ fees awards since the Supreme Court articulated the standard for awarding fees in patent cases. Andrew was also part of the appellate team that obtained both affirmance of the merits win as well as a published opinion affirming the fee award.
Brockmeier v. Georgia-Pacific & Union Carbide - Orleans Parish, Louisiana - Andrew was part of a trial team that obtained an emergency writ for a mistrial in the Louisiana Court of Appeal after plaintiff's opening statement to the jury impermissibly referred to settlements by other parties. In this wrongful death suit arising out of the plaintiff's contraction of mesothelioma, Andrew represented Union Carbide, who provided asbestos to Georgia-Pacific as a raw material in some Georgia-Pacific products, which were allegedly used by the plaintiff. Union Carbide was sued for negligence and products liability. Andrew worked on jury instructions and pre- and mid-trial motions practice as well as the emergency writ.
Amarin v. International Trade Commission - ITC - Andrew led the briefing team in successfully persuading the ITC not to institute an investigation into whether Omega-3 fish oil vitamins were improperly classified as "dietary supplements," rather than "new drugs," under the Food, Drug, and Cosmetics Act and thus amounted to false labeling under the Lanham Act. In briefing before proceedings in the ITC even began, Andrew and his team, representing DSM Nutritional Products and Pharmavite, persuaded the ITC that Amarin's claim is not cognizable under the Tariff Act but rather is an impermissible claim under the FDCA, which is exclusively enforced by the Food and Drug Administration. The case is now on appeal in the Federal Circuit, with a decision expected later this year.
Supreme Court & Appellate Engagements
John Wiley & Sons v. Kirtsaeng – Supreme Court & Second Circuit – After prevailing in the Supreme Court’s landmark decision in Kirtsaeng v. Wiley, holding that the “first sale” doctrine protects the resale and importation of copyrighted works sold abroad, Kirtsaeng requested his attorneys’ fees for his successful pursuit of his meritorious defense. Andrew briefed the fee petition in the district court and then briefed and argued the appeal in the Second Circuit before successfully petitioning the Supreme Court for certiorari. The Supreme Court ruled for Kirtsaeng again, this time unanimously, vacating the Second Circuit’s decision and remanding for the district court to assess Kirtsaeng’s fee petition under the appropriate standard.
Los Angeles County v. Mendez – Supreme Court – Andrew represented two police deputies appealing an adverse judgment holding them personally liable for more than $4M in damages. The Supreme Court unanimously ruled in favor of the officers, overturning the Ninth Circuit's controversial “provocation rule,” which held a police officer liable for the use of reasonable force if the officer committed some earlier act in the encounter that led to use of force.
Gallucci v. Boiron – Ninth Circuit – Andrew argued the matter to the Ninth Circuit, persuading the court to summarily affirm the district court’s certification of a class for settlement purposes and approval of the settlement. Andrew represented Boiron, the manufacturer of homeopathic drugs to treat illnesses such as the cold and the flu. The wide-ranging settlement involved 800 Boiron products.
Synopsys Inc. v. Mentor Graphics & U.S.P.T.O. and Mentor Graphics v. E.V.E.-USA, Inc. – Federal Circuit and Supreme Court – Andrew represents Synopsys in a series of appeals involving its ongoing litigation with Mentor Graphics regarding emulation technology. Initial appeals have already resulted in precedent-setting decisions that have clarified the scope of inter partes reviews and available appellate and administrative options to challenge decisions by the Patent Trial and Appeal Board. The appeal from the district court raises such big-ticket questions as the apportionment of damages for lost profits, the continuing vitality of the assignor-estoppel doctrine, the definiteness of terms of degree, and the appropriate legal standard for res judicata in patent cases. The Supreme Court is now considering whether to grant certiorari to consider assignor estoppel and/or apportionment of lost profits damages in patent cases.
Hollingsworth v. Perry – Supreme Court – Andrew represented over 100 amici, including some of the world’s largest companies — including Cisco, Facebook, Hewlett-Packard, Intel, Levi Strauss, NIKE, Office Depot, Oracle, Panasonic, and others — in urging the Supreme Court to hold the right to marry for same-sex couples is a fundamental right and that laws prohibiting same-sex marriage violate the Equal Protection Clause.McCleary v. Washington – Washington Supreme Court – Andrew represented all living former governors of the State of Washington in an amicus brief urging the Washington Supreme Court to not hold the State Legislature in contempt and to instead allow the political process to run its course. The Washington Supreme Court adopted nearly verbatim the position of the former governors outlined in Andrew’s amicus brief.