Andrew D. Silverman

Partner

New York

Andrew Silverman is an appellate lawyer focusing on high-stakes, precedent-setting cases nationwide. A distinguishing feature of Andrew’s practice is that clients routinely call on him in the trial court to win the case long before the appeal. 

Andrew is skilled brief writer who works on significant motions in the trial court to prevent any resort to appeal by winning the case first. In addition, Andrew specializes in readying cases for appeal by perfecting critical appellate issues and teeing them up in the most favorable posture. 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 and the U.S. Department of Labor), PricewaterhouseCoopers (against MF Global), Gilead Sciences (against relators on behalf of the United States), Synopsys (against Ubiquiti Networks), and the dietary supplement industry (against Amarin Pharmaceuticals). 

Drawing on his years of experience as a trial attorney at the U.S. Department of Justice, Andrew collaborates with the trial court team to serve as the point person for law-intensive brief-writing and strategy. In cases where the stakes are so high that an appeal is all but inevitable, Andrew is frequently retained to work on motions to dismiss, preliminary-injunction briefing, and summary-judgment motions. If the case proceeds toward trial, Andrew leads strategizing and all manner of briefing from jury instructions to motions in limine to mid-trial objections and pocket briefs to motions for judgment as a matter of law and motions for a new trial.   

Andrew also has a strong record on appeals, including in major appeals for Oracle (against Google), KBC Bank (against Lazare Kaplan), Dow AgroSciences (against Bayer CropSciences), a former executive of IBM (against IBM), Boiron (as part of a class action settlement), and in the U.S. Supreme Court for a Thai Professor, Supap Kirtsaeng (sued by the publisher John Wiley & Sons, Inc.). In appellate cases, Andrew takes pride in collaborating with his client and the trial team to rethink the case from the bottom up, searching for 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 first page. Andrew emphasizes oral argument, working tirelessly to develop themes specifically for oral argument that magnify -- not merely parrot -- the briefing.

  • Trial Engagements

    Oracle America, Inc. v. Google – N.D. Cal., Federal Circuit, & Supreme Court – 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.  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 twice prevailed in winning that Oracle's software code is copyrightable and that Google's copying was an infringement.  

    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.  Before trial, Andrew worked on jury instructions, motions in limine, and Daubert 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, the case settled to the mutual satisfaction of the parties three weeks into a five-week trial .

    The City of Jacksonville & the Jacksonville Energy Authority v. Municipal Energy Authority of Georgia – N.D. Ga., M.D. Fla., & Eleventh Circuit – Andrew represented MEAG in dueling suits regarding construction of the first nuclear power plant in decades.  The key issue in the case was whether a power purchase agreement (PPA) between MEAG and JEA -- which was the centerpiece in securing $6.8 billion in funding for the project -- was valid and bound JEA.  On a dispositive pre-trial motion, the district court sided completely with MEAG, holding that the PPA is binding, valid, and enforceable. The outcome sets critical precedent for public power institutions as they seek to enforce "hell or high water" contracts through validation proceedings, both of which are frequently used and absolutely critical for large public works projects. 

    Bayer CropScience v. Dow AgroSciences – D. Del. & Federal Circuit – 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 expects 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.  Andrew was also part of the appellate team that obtained affirmance of both the merits win and the fee award.

    Synopsys, Inc. v. Ubiquiti & Ubiquiti Networks Int'l Limited – N.D. Cal. – Andrew led the trial court briefing for Plaintiff Synopsys, who brought suit against the defendants for violations of the Digital Millennium Copyright Act, the Anti-Counterfeiting Act, and the Racketeer Influenced & Corrupt Organizations Act ("RICO").  Synopsys licenses software to companies to aid them in designing and testing microchip designs.  Synopsys alleged that the defendants circumvented Synopsys' security measures to unlawfully access and use Synopsys' software. Andrew led the briefing on sanctions for spoliation of evidence, summary judgment, Daubert motions, jury instructions, and motions in limine.  All of Synopsys' principal claims survived summary judgment, and the case settled shortly thereafter.

    Oracle v. U.S. Dep’t of Labor – D.D.C. – Andrew led a team that brought a cutting-edge lawsuit against the Department of Labor that alleged that the Department’s administrative tribunals for prosecuting, adjudicating, and remediating claims of classwide employment discrimination against government contractors are unconstitutional because they are not authorized by Congress, exceed the President’s authorization, violate the nondelegation doctrine, and are contrary to statute. The case attracted nationwide attention with briefs filed by nearly 20 states, the Chamber of Commerce, national labor unions, and civil rights groups. The case settled while summary-judgment motions were fully briefed and pending.

    Amarin v. International Trade Commission – ITC, Federal Circuit, Supreme Court - Andrew led the briefing team that successfully persuaded the ITC not to institute an investigation into whether Omega-3 fish oil vitamins were improperly marketed as "dietary supplements," rather than "new drugs," under the Food, Drug, and Cosmetics Act and thus amounted to false labeling under the Lanham Act and unfair competition under the Tariff Act.  In briefing before proceedings in the ITC even began, Andrew and his team persuaded the ITC that Amarin's claims are not cognizable under the Tariff Act and thus not reviewable by the ITC.  Andrew then spearheaded the briefing in the Federal Circuit Court of Appeals, which affirmed the ITC's decision, and in the Supreme Court, which denied Amarin's petition for certiorari. 

    Washington Alliance of Technology Workers v. Dep’t of Homeland Security – D.D.C. & D.C. Circuit – Andrew led a team that filed an amicus brief on behalf of Corporate America in defense of an immigration program that allows international students who have graduated from U.S. universities with degrees in science, technology, engineering, or mathematics fields to remain in the country for several years after graduation to continue their practical training by working in STEM roles. The amicus brief was spearheaded by FWD.us and signed by companies such as Apple, Dow, Facebook, Microsoft, Oracle, Twitter and many other big and small companies and industry groups.

    Supreme Court & Appellate Engagements

    Lazare Kaplan Int'l v. KBC Bank - Second Circuit -  Andrew helped finally bring an end to long-running litigation brought by the global diamond company Lazare Kaplan against his client KBC Bank.  Lazare alleged that KBC Bank was part of an international conspiracy to steal hundreds of millions of dollars of diamonds and cash proceeds from diamond sales, and sought damages of $1.5 billion. Andrew persuaded the Second Circuit that Lazare’s claims had to be dismissed in New York and litigated, if at all, in Belgium.

    IBM v. Lima – Second Circuit – Andrew led the appeal in the Second Circuit to overturn a preliminary injunction that precludes Mr. Rodrigo Lima, a former high-level executive at IBM, from beginning a new position at Microsoft as its Corporate Vice President of Latin America. While employed by IBM, Lima signed a noncompetition agreement that precluded him from working for a year for any IBM competitor in any position that “could result in” him disclosing, using, or relying on IBM information. Lima challenged the noncompete as overbroad and unenforceable and further challenged the preliminary injunction as premised on a misapplication of the so-called “inevitable disclosure” doctrine. 

    Gallucci v. Boiron – Ninth Circuit – Andrew argued the matter to the Ninth Circuit, persuading the court to 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.

    Kirtsaeng v. John Wiley & Sons – SDNY, Second Circuit, & Supreme Court – 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 first 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.

    Brockmeier v. 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.  

    Synopsys Inc. v. Mentor Graphics & U.S.P.T.O. and Mentor Graphics v. E.V.E.-USA, Inc. – Supreme Court & Federal Circuit – Andrew represented Synopsys in a series of appeals involving expansive litigation with Mentor Graphics regarding emulator technology.  The initial appeals in the litigation resulted in precedent-setting decisions that clarified the scope of inter partes reviews and available appellate and administrative options to challenge decisions by the Patent Trial and Appeal Board.  Those appeals set the stage for Synopsys' appeal of a nearly $40M jury verdict for patent infringement.  That appeal raised 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.  Synopsys later petitioned for certiorari on the issues of assignor estoppel and apportionment of damages.  After the Supreme Court invited the Solicitor General to weigh in on those issues, the parties reached a global litigation settlement.

    Hollingsworth v. Perry – Supreme Court – Andrew represented over 100 amici, including some of the world’s largest companies — such as 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.