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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 even before the appeal. 

Andrew is a skilled brief writer who works on significant motions in the trial court to prevent any need for appeal by winning the case first. Drawing on his years 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 briefs and strategy. Andrew is frequently retained to work on dispositive motions and preliminary-injunction briefing. 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 to post-trial motions.

In addition, Andrew focuses on 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 Dow, Gilead Sciences, Oracle, PricewaterhouseCoopers, and Basin Electric Power.

Andrew also has a strong record on appeals, including major wins for Oracle, Dow AgroSciences, Basin, KBC Bank, and the City and County of Los Angeles. 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 – In what was dubbed “The World Series of Copyright Suits,” Andrew led all briefing in the retrial of Oracle’s bet-the-company lawsuit alleging copyright infringement against Google’s Android operating system.  Andrew ran point on jury instructions, motions in limine, Daubert motions, motions for JMOL and a new trial. Andrew was also one of the primary attorneys on the appellate team that twice prevailed in winning, first, that Oracle's software code is copyrightable and, second, that Google's copying infringed.

    TDF Litigation - Andrew represents Gilead Sciences in dispositive motions and other briefing in products-liability litigation brought by nearly 30,000 plaintiffs. Andrew has briefed common-issues summary-judgment motions in both state and federal court, as well as motions in limine and jury instructions. Andrew has also led briefing of an appeal in the California Court of Appeal and now in the California Supreme Court challenging the legal viability of the state plaintiffs' sole remaining claim for relief.

    MF Global v. PricewaterhouseCoopers – In litigation stemming from the high-profile collapse of MF Global, Andrew assisted a trial team in representing PwC against a $3B accounting malpractice suit by the bankruptcy estate. Andrew worked on jury instructions, motions in limine, 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 – Andrew represented MEAG in dueling suits regarding construction of the first nuclear power plant in the United States in decades. On a dispositive pre-trial motion, Andrew persuaded the district court that the contract JEA sought to invalidate -- the centerpiece in securing $6.8 billion in funding for the construction -- was binding, valid, and enforceable.

    Hernandezcueva v. Union Carbide - Andrew led post-trial briefing that overturned a $100+ million verdict in a wrongful death case. The court granted  both Union Carbide's motion for JNOV, holding that there was no evidence that the plaintiff had been exposed to Union Carbide asbestos, and Union Carbide's motion for a new trial on the grounds of attorney and jury misconduct, excessive compensatory and punitive damages, and the jury's unreasonable and unsupported allocation of fault among the defendants and various third parties. 

    Oracle v. U.S. Dep’t of Labor – Andrew led a team that sued the Department of Labor, arguing that the Department’s administrative tribunals for prosecuting, adjudicating, and remediating claims of class-wide employment discrimination against government contractors are not authorized by Congress and exceed the President’s authority. The case attracted nationwide attention with briefs filed by nearly 20 states, the Chamber of Commerce, national labor unions, and civil rights groups.

    Supreme Court & Appellate Engagements

    Basin Electric Power Cooperative v. Dakota Energy Electric Cooperative - 8th Circuit - After leading successful summary-judgment briefing, Andrew obtained an affirmance of that win for Basin, with the Eighth Circuit holding that Dakota Energy could not terminate its wholesale power contract more than 50 years before it was set to conclude. Because longterm, no-early-termination, power contracts are the cornerstone of the rural energy cooperative model, Basin's win ended a challenge that, if successful, would have threatened to undermine the entire industry.

    Lazare Kaplan Int'l v. KBC Bank - 2nd Circuit -  Andrew led the appeal that finally brought an end to long-running litigation filed by the global diamond company Lazare Kaplan against 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.

    BB Energy v. PRH - 5th Circuit - In the span of less than nine months, Andrew twice defeated PRH's attempt to obtain prejudgment garnishment of property owned by a foreign government and allegedly in the possession of the energy trading company, BB Energy. Raising defenses at the intersection of sovereign immunity, garnishment, and maritime law, Andrew persuaded the Fifth Circuit to reverse two district court orders, one denying a motion to dismiss claims of prejudgment garnishment and another permitting intrusive and unnecessary discovery against garnishee, BB Energy.

    Gallucci v. Boiron – 9th 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 – 2nd Circuit – After prevailing in the Supreme Court’s landmark decision 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 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.