New York Office
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 brief-writing and strategy. 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 post-trial motions for judgment as a matter of law and for a new trial.
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 Oracle (against Google and the U.S. Department of Labor), PricewaterhouseCoopers (against MF Global), and Gilead Sciences (under the False Claims Act and in a mass products liability action involving tens of thousands of plaintiffs).
Andrew also has a strong record on appeals, including major wins for Oracle (against Google), Dow AgroSciences (against Bayer CropSciences), Basin Electric Power Cooperative (against one of its member-owners), KBC Bank (against Lazare Kaplan), and in the U.S. Supreme Court for the County of Los Angeles and for a Thai Professor (in a landmark copyright ruling). 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.
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, mid-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, first, that Oracle's software code is copyrightable and, second, that Google's copying infringed.
MF Global v. PricewaterhouseCoopers – In litigation stemming from the high-profile collapse of MF Global, Andrew assisted a trial team from another firm in representing PwC against a $3B accounting malpractice suit by the bankruptcy estate. Andrew worked on jury instructions, motions in limine, Daubert motions, 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.
Bayer CropScience v. Dow AgroSciences – Andrew was part of a team that obtained a complete victory at summary judgment on a licensing defense for Dow AgroSciences after Bayer brought a patent-infringement suit that sought to prevent Dow from launching a new flagship product. Andrew also led the briefing in defeating Bayer's motion for a preliminary injunction and in obtaining Dow's attorneys’ fees. Andrew was then 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 – 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"). 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 – Andrew led a team that sued the Department of Labor, arguing that the Department’s administrative tribunals for prosecuting, adjudicating, and remediating claims of classwide 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.
Amarin v. International Trade Commission – Andrew led the briefing that successfully persuaded the ITC to not even 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. Andrew later spearheaded briefing in the Federal Circuit, which affirmed the ITC's decision not to institute an investigation.
Washington Alliance of Technology Workers v. Dep’t of Homeland Security – Andrew led an amicus effort on behalf of Corporate America in defense of an immigration program that allows international students who have graduated from U.S. universities with a degree in science, technology, engineering, or math to remain in the country for several years after graduation to continue their practical training by working in STEM roles. The amicus brief was led by FWD.us and signed by companies such as Dow, Facebook, Microsoft, Oracle, Twitter and many other household names and industry groups.
Supreme Court & Appellate Engagements
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.
Basin Electric Power Cooperative v. Dakota Energy Electric Cooperative - 8th Circuit - After leading the successful district court briefing, Andrew obtain affirmance of a summary-judgment win for Basin which held 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.
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.
IBM v. Lima – 2nd Circuit – Andrew led an appeal to overturn a preliminary injunction that precluded a former high-level executive at IBM from beginning a new position at Microsoft as a Corporate Vice President. The appeal challenged a particularly aggressive noncompete agreement 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 – 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.
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.
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, 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.