Andrew L. Zivitz

Partner

EDUCATION
  • University of Michigan
    B.A., with distinction 1992
  • Duke University School of Law
    J.D. 1995
ADMISSIONS
  • Pennsylvania
  • New Jersey
  • United States Supreme Court
  • USDC, Eastern District of Pennsylvania
  • USDC, District of New Jersey
  • USCA, Second Circuit
  • USCA, Sixth Circuit
  • USCA, Seventh Circuit
  • USCA, Ninth Circuit
  • USCA, Tenth Circuit
  • USCA, Eleventh Circuit
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Drawing on more than two decades of litigation experience, Andrew L. Zivitz has achieved extraordinary results in securities fraud cases. His work has led to the recovery of more than $1 billion for damaged clients and class members.

Andy has represented dozens of major institutional investors in securities class actions and private litigation. He is skilled in all aspects of complex litigation, from developing and implementing strategies, to conducting merits and expert discovery, to negotiating resolutions. Andy has served as lead or co-lead counsel in several of the largest securities class actions in the U.S., including cases against JPMorgan, Bank of America, Hewlett-Packard, Tenet Healthcare, and Pfizer.

Andy’s extensive courtroom experience serves his clients well in trial situations, as well as pre-trial proceedings and settlement negotiations. He served as one of the lead plaintiffs’ attorneys in the only securities fraud class action arising out of the financial crisis to be tried to a jury verdict, has handled a Daubert trial in the U.S. District Court for the Southern District of New York, and successfully argued dispositive motions before federal district and appeals courts throughout the country. 

Before joining Kessler Topaz Meltzer & Check, Andy worked at the international law firm Drinker Biddle and Reath, primarily representing defendants in large, complex litigation. His experience on the defense side of the bar provides a unique perspective in prosecuting complex plaintiffs’ litigation.

Experience
Ongoing Cases
  • In August 2018, Kessler Topaz was appointed to represent a putative class of investors in consolidated actions pending in the United States District Court for the Northern District of Georgia against Acuity Brands Inc., its former CEO, Vernon J. Nagel, and its former CFO, Richard K. Reece.  Following an extensive investigation, in October 2018 Kessler Topaz filed a complaint alleging that Defendants failed to disclose to investors their knowledge of the adverse impact of increased competition in the LED market on Acuity’s financial performance and also that Defendants falsely touted Acuity’s business relationship with its largest customer, Home Depot, while failing to disclose that increased LED competition was eroding Acuity’s sales to Home Depot.  The complaint further alleged that Defendants sought to conceal the negative impact of competition through aggressive sales practices, including widespread quarter-end shipments.

    On August 12, 2019, U.S. District Judge Mark H. Cohen sustained in part Plaintiff’s claims, finding that the complaint adequately alleged that Defendants knowingly or recklessly issued false or misleading statements concerning the impact of increased competition on Acuity and with respect to the strength of Acuity’s sales to Home Depot.  Discovery is ongoing.

  • In September 2018, Kessler Topaz was appointed to represent a putative class of investors in consolidated actions in the United States District Court for the District of New Jersey against pharmaceutical giant Celgene and several of its executive officers.  This securities fraud case involves Celgene’s concealment of a critical drug metabolite discovered during the clinical development of the multiple sclerosis drug Ozanimod and the company’s ongoing misrepresentations to investors that Ozanimod was on track to be approved by the U.S. Food and Drug Administration (FDA) pursuant to the company’s timeline.  Unbeknownst to the public, the discovery of the metabolite required substantial, additional studies mandated by the FDA that imperiled the timeline for regulatory approval.  After Celgene filed a facially deficient new drug application with the FDA, the agency issued a rare, “refuse-to-file” letter, causing investors to question the company’s prior assurances and the company’s stock price to plummet. 

    On December 19, 2019, U.S. District Judge John Michael Vasquez issued a 49-page opinion sustaining the shareholders’ claims.  The case is now in discovery.  

Representative Outcomes
  • This securities fraud class action in Manhattan federal court arose out of Pfizer’s concealment of clinical results for two arthritic pain drugs, Celebrex and Bextra. Despite being aware of significant cardiovascular adverse events in clinical trials, Pfizer misrepresented the safety profile of the drugs until the U.S. Food & Drug Administration discontinued a key trial, forced the withdrawal of Bextra from the market, and issued an enhanced warning label for Celebrex. Following a summary judgment order dismissing the case several weeks before trial was set to begin, we successfully appealed the dismissal at the U.S. Court of Appeals for the Second Circuit and the case was remanded for trial.

    After twelve years of litigation, the case resolved in 2016 with Pfizer agreeing to pay the shareholder class $486 million, the largest-ever securities fraud settlement against a pharmaceutical company in the Southern District of New York.

  • This securities fraud class action in the United States District Court for the Southern District of New York stemmed from the “London Whale” derivatives trading scandal at JPMorgan Chase. Shareholders alleged that JPMorgan concealed the high-risk, proprietary trading activities of the investment bank’s Chief Investment Office, including the highly volatile, synthetic credit portfolio linked to trader Bruno Iksil—a.k.a., the “London Whale”—which caused a $6.2 billion loss in a matter of weeks. Shareholders accused JPMorgan of falsely downplaying media reports of the synthetic portfolio, including on an April 2012 conference call when JPMorgan CEO Jamie Dimon dismissed these reports as a “tempest in a teapot,” when in fact, the portfolio’s losses were swelling as a result of the bank’s failed oversight. 

    This case was resolved in 2015 for $150 million, following U.S. District Judge George B. Daniels’ order certifying the class, representing a significant victory for investors.

  • Obtained a $2.4 billion settlement in litigation against Bank of America (BoA) relating to its merger with Merrill Lynch & Co. (Merrill). Our clients, Dutch National pension fund PGGM and Swedish National pension fund AP4, alleged that BoA gave shareholders false and misleading information about Merrill’s financial condition and obligations prior to a key vote on the merger. 

    The settlement, which included an undertaking to improve corporate governance policies, was the 6th-largest ever in a securities class action and the largest so far to come out of the subprime meltdown and credit crisis.

  • As co-lead counsel representing the Maine Public Employees’ Retirement System, secured a $500 million settlement for a class of plaintiffs that purchased mortgage-backed securities (MBS) issued by Countrywide Financial Corporation (Countrywide).

    Plaintiffs alleged that Countrywide and various of its subsidiaries, officers and investment banks made false and misleading statements in more than 450 prospectus supplements relating to the issuance of subprime and Alt-A MBS—in particular, the quality of the underlying loans. When information about the loans became public, the plaintiffs’ investments declined in value. The ensuing six-year litigation raised several issues of first impression in the Ninth Circuit.

  • Led class action on behalf of participants in JPMorgan Chase Bank’s (JPMorgan) securities lending program that incurred losses on JPMorgan’s investments in medium-term notes issued by Sigma Finance, Inc. 

    Our clients, the American Federation of Television & Radio Artists Retirement Fund and the Imperial County Employees’ Retirement System, asserted claims for breach of fiduciary duty under ERISA, as well as common law breach of fiduciary duty, breach of contract and negligence. During discovery, the parties produced and reviewed hundreds of thousands of pages of documents, took 40 depositions and submitted 21 expert reports. The case settled on the eve of trial for $150 million.

  • We served as sole lead counsel on behalf of Dutch National Pension fund PGGM Vermogensbeheer B.V. and a putative class of Hewlett-Packard Company (HP) investors, in an action against HP alleging that HP and its officers and directors made false and misleading statements relating to the $11 billion acquisition and value of Autonomy Corporation plc. PGGM alleged, on behalf of the putative class, that the defendants knew or should have known that Autonomy was worth considerably less than the purchase price, and that HP shareholders were harmed by the fraud.  After several years of hard-fought litigation and settlement negotiations, HP agreed to settle the matter for $100 million in cash. The settlement was approved by the Court on November 13, 2015. In approving the settlement, the Court complimented the terms of the settlement and PGGM's and KTMC's efforts, stating that KTMC “did a great job” and calling the settlement "an excellent resolution of this case" and "a very good result for their class."

  • Represented Danish mutual fund manager Danske Invest A/S and Westmoreland County Employees’ Retirement System as co-lead counsel in an class action alleging that Medtronic and its senior officers failed to disclose the company’s reliance on illegal “off-label” marketing techniques to drive sales of its INFUSE Bone Graft medical device.

    As a result of the illegal marketing practices, Medtronic became the target of a federal government investigation. Stock prices plummeted when Medtronic’s CEO reported that the company had received a U.S. Department of Justice subpoena, significantly impacting the value of the plaintiff’s stock. After hard-fought discovery and class certification battles, Medtronic agreed to pay shareholders $85 million. 

  • As co-lead counsel representing the State of New Jersey – Division of Investment, negotiated a groundbreaking multipart settlement in litigation arising from Tenet Healthcare’s (Tenet) manipulation of the Medicare Outlier reimbursement system and related misrepresentations and omissions.

    The initial partial settlement included $215 million from Tenet, personal contributions totaling $1.5 million from two individual defendants—an unusual result in class action litigation—and numerous changes to the company’s corporate governance practices. A second partial settlement of $65 million from Tenet’s outside auditor, KPMG, addressed claims that it had provided false and misleading certifications of Tenet’s financial statements.  As a result of the settlement, various institutional rating entities now rank Tenet’s corporate governance policies among the strongest in the United States. 

Awards/Ranking

Benchmark Litigation Stars, 2020 

Community Involvement

Andy helps oversee the firm’s pro bono practice.  Currently, KTMC provides pro bono assistance to the Public Interest Law Center of Philadelphia’s (“PILCOP”) Special Education Project.  The goal of the Special Education Project is to secure appropriate public education for children with disabilities in the Philadelphia area.  By way of example, KTMC recently represented a five-year old boy with severe autism against an area school district that was not providing the child with an appropriate and safe educational environment.  Shortly after instituting litigation against the school district, KTMC and PILCOP successfully secured one-on-one classroom supervision for the child, a safe and suitable school environment with similar students, and more than a thousand hours of compensatory education services.