Andrew L. Zivitz


  • University of Michigan
    B.A., with distinction 1992
  • Duke University School of Law
    J.D. 1995
  • Pennsylvania
  • New Jersey
  • USDC, Eastern District of Pennsylvania
  • USDC, District of New Jersey
  • USCA, Second Circuit
  • USCA, Sixth Circuit
  • USCA, Ninth Circuit
  • USCA, Tenth Circuit
  • USCA, Eleventh Circuit
  • United States Supreme Court

Drawing on 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 back-to-back appeals before the Ninth Circuit Court of Appeals.

Before joining Kessler Topaz, 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.  

Ongoing Cases
  • In December 2014, Kessler Topaz was appointed co-lead counsel on behalf of two institutional lead plaintiffs and a putative class of investors in SeaWorld Entertainment, Inc. (“SeaWorld”).  The action asserts claims on behalf of investors in SeaWorld regarding the company’s issuance of materially false and misleading statements concerning SeaWorld’s business.  For decades, SeaWorld has kept orca whales in captivity and used them as performers in animal entertainment shows at its theme parks.  The documentary film ‘Blackfish,’ released in 2013, portrayed SeaWorld’s treatment and use of orcas in a harshly negative light.  ‘Blackfish,’ seen by millions of people around the world, sparked widespread public outcry and protests about SeaWorld’s animal treatment practices and orcas-as-entertainment business model.  At the same time, attendance at SeaWorld theme parks – an important factor in SeaWorld’s revenues – turned sharply downward, and celebrity and corporate partners severed ties with the company.  SeaWorld repeatedly asserted, however, that the film and the related public backlash was having no effect on the company’s business or attendance at its parks.  Lead Plaintiffs claim that these representations by SeaWorld were false, and that when the falsity of these statements was finally revealed in August 2014, and the company’s stock price fell by approximately 33%, SeaWorld shareholders were harmed.  After the case was initially dismissed with leave to re-plead, in 2016 Kessler Topaz, on behalf of the Lead Plaintiffs, successfully re-pled the complaint and argued to the federal court in San Diego, California, that the case should go forward.  The court agreed, sustained the case over SeaWorld’s motion to dismiss, and in late 2016 merits discovery began. 

    On June 23, 2017, SeaWorld disclosed in a filing with the U.S. Securities and Exchange Commission (SEC) that it had received subpoenas from the United States Department of Justice and the SEC “concerning disclosures and public statements made by the Company and certain executives and/or individuals on or before August 2014, including those regarding the impact of the ‘Blackfish’ documentary, and trading in the company’s securities.” Kessler Topaz, on behalf of Lead Plaintiffs, subsequently filed a notice with the court indicating that the federal investigations concern the same events that are at issue in the ongoing securities litigation led by Kessler Topaz, and news outlets have also linked the federal investigations with the shareholder litigation ( Kessler Topaz will continue to monitor these investigations while it vigorously pursues merits discovery and the successful resolution of this case at trial.

Representative Outcomes
  • 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. 

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.