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Andrew L. Zivitz

Partner

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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 many of the largest securities class actions in the U.S., including cases against Bank of America, Celgene, Goldman Sachs, Hewlett-Packard, JPMorgan, Pfizer, Tenet Healthcare, and Walgreens.
 
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.

Speaking Engagements

Andy is a regular speaker at the Firm’s annual conferences, including the Rights & Responsibilities of Institutional Investors in Amsterdam and the Evolving Fiduciary Obligations of Pension Plans in Washington, D.C.

Awards/Rankings

  • Benchmark National Litigation Star, 2020-2022 
  • Benchmark Litigation US Awards 2021 & 2022 -- Plaintiff Litigator Of The Year Nominee
Experience

Current Cases

  • CASE CAPTION    In re The Boeing Company Aircraft Securities Litigation
    COURT United States District Court for the Northern District of Illinois
    CASE NUMBER 1:19-cv-02394
    JUDGE Honorable John J. Tharp Jr.
    PLAINTIFF

    Public Employees’ Retirement System of Mississippi, City of Warwick Retirement System, William C. Houser, Bret E. Taggart, & Robert W. Kegley Sr.

    DEFENDANTS The Boeing Company, Dennis A. Muilenburg, and Gregory D. Smith
    CLASS PERIOD November 7, 2018 through December 16, 2019, inclusive

    This securities fraud class action arises out of Boeing’s alleged misstatements and concealment of the significant safety issues with its 737 MAX airliner, which caused two horrific plane crashes. In 2011, under pressure after its main competitor developed a fuel-efficient jet, Boeing announced its own fuel-efficient jet, the 737 MAX. In its rush to get the MAX to market, Boeing deliberately concealed safety risks with its updated airliner from regulators. On October 29, 2018, the 737 MAX being flown by Lion Air malfunctioned and crashed, killing 189 people. While Boeing repeatedly assured the public that the 737 MAX was safe to fly, internally, the Company was quietly overhauling the airliner’s systems in an attempt to reduce the risk of another fatal malfunction. Despite Boeing’s reassurances to the public, on March 10, 2019 another 737 MAX, this time operated by Ethiopian Airlines, experienced malfunctions before crashing and killing 157 people.

    Even as regulators and Congress investigated the crashes, throughout the Class Period, Boeing continued to convey to the public that the 737 MAX would return to operation while covering up the full extent of the airliner’s safety issues. In December 2019, Boeing finally announced it would suspend production of the 737 MAX, causing the dramatic decline of Boeing’s stock price and significant losses and damages to shareholders. Since the 737 MAX catastrophe, the U.S. Securities and Exchange Commission has initiated a civil fraud investigation and the U.S. Department of Justice has initiated a criminal investigation into Boeing’s fraudulent conduct.

    In February 2020, a Consolidated Class Action Complaint was filed on behalf of a putative class of investors. The complaint alleges Boeing and its former executives—including former President, CEO, and Chairman of the Board Dennis Muilenburg and CFO Gregory Smith—violated Section 10(b) of the Securities Exchange Act by making false and misleading statements regarding the fatal safety issues with its 737 MAX airliner. The complaint additionally alleges violations of Section 20(a) of the Securities Exchange Act against Dennis Muilenburg and Gregory Smith as controlling persons liable for the false and misleading statements made by Boeing.

    Defendants filed a motion to dismiss the Consolidated Class Action Complaint, which is currently pending before the Honorable John J. Tharp Jr.

    Read Consolidated Class Action Complaint Here

  •   CASE CAPTION                       Delaware County Employees Retirement System, et al. v. Cabot Oil & Gas Corporation, et al.
      COURT  United States District Court for the Southern District of Texas
      CASE NUMBER 21-cv-02045
      JUDGE Honorable Lee H. Rosenthal
      PLAINTIFF Delaware County Employees Retirement System; Iron Workers District Council (Philadelphia & Vicinity) Retirement and Pension Plan
      DEFENDANTS Cabot Oil & Gas Corporation (“Cabot” or the “Company”), Dan O. Dinges, Scott C. Schroeder, and Phil L. Stalnaker
      CLASS PERIOD October 23, 2015 through June 12, 2020, inclusive

    This securities fraud class action case arises out of Defendants’ representations and omissions regarding Cabot’s legal compliance, polluting activities and risk.  During the Class Period, Cabot touted its compliance with applicable environmental laws and being a good steward of the environment. Unbeknownst to investors, Cabot’s environmental infractions were so extreme that after a lengthy grand jury investigation Pennsylvania charged Cabot with fifteen crimes, including nine felonies.

    Plaintiffs filed a 102-page complaint in April 2021 on behalf of a putative class of investors alleging that Cabot and its CEO Dan O. Dinges, CFO Scott C. Schroeder, and Senior Vice President Phil L. Stalnaker, violated Sections 10(b) and 20(a) of the Securities Exchange Act by making false and misleading statements and concealing material facts about the Company’s ongoing violations of environmental laws and polluting of Pennsylvania’s waters. As alleged, following revelations about Cabot’s legal compliance and subsequent criminal charges, Cabot’s stock price fell precipitously, causing significant losses and damages to the Company’s investors.

    On February 11, 2022, Plaintiffs filed an amended complaint, which Defendants moved to dismiss.  Briefing on that motion was fully submitted to the Court on June 1, 2022. 

    Read Consolidated Complaint Here

    Read Amended Complaint Here

  • CASE CAPTION In re Celgene Corporation Securities Litigation
    COURT United States District Court for the District of New Jersey
    CASE NUMBER 2:18-cv-04772-JMV-JBC
    JUDGE Honorable John Michael Vazquez and Honorable James B. Clark, III
    PLAINTIFF AMF Pensionsförsäkring AB (“AMF”)
    DEFENDANTS Celgene Corporation (“Celgene”), Scott A. Smith, Terrie Curran, and Philippe Martin
    CLASS PERIOD April 27, 2017 through April 27, 2018, inclusive

    This securities fraud case involves Celgene’s misrepresentations and omissions about two billion dollar drugs, Otezla and Ozanimod, that Celgene touted as products that would make up for the anticipated revenue drop following the patent expiration of Celgene’s most profitable drug, Revlimid.

    Celgene launched Otezla, a drug treating psoriasis and psoriatic arthritis, in 2014. Celgene primed the market that Otezla sales were poised to sky-rocket, representing that Otezla net product sales would reach $1.5 billion to $2 billion by 2017. Throughout 2015 and 2016, Defendants represented that Celgene was on-track to meet the 2017 sales projection. As early as mid-2016, however, Defendants received explicit internal warnings that the 2017 projection was unattainable, but continued to reaffirm the 2017 target to investors. By October 2017, however, Celgene announced that the Company had slashed the 2017 guidance by more than $250 million and lowered the 2020 Inflammatory & Immunology (“I&I”) guidance by over $1 billion. Celgene’s stock price plummeted on the news.

    Ozanimod, a drug treating multiple sclerosis, is another product in Celgene’s I&I pipeline, and was initially developed by a different company, Receptos. In July 2015, Celgene purchased Receptos for $7.2 billion and projected annual Ozanimod sales of up to $6 billion despite the fact that Ozanimod was not yet approved by the U.S. Food and Drug Administration (“FDA”).

    Celgene told investors that it would file a New Drug Application (“NDA”) for Ozanimod with the FDA in 2017. Unbeknownst to investors, however, Celgene discovered a metabolite named CC112273 (the “Metabolite”) through Phase I testing that Celgene started in October 2016, which triggered the need for extensive testing that was required before the FDA would approve the drug. Despite the need for this additional Metabolite testing that would extend beyond 2017, Defendants continued to represent that Celgene was on track to submit the NDA before the end of 2017 and concealed all information about the Metabolite.  In December 2017, without obtaining the required Metabolite study results, Celgene submitted the Ozanimod NDA to the FDA. Two months later, the FDA rejected the NDA by issuing a rare “refuse to file,” indicating that the FDA “identifie[d] clear and obvious deficiencies” in the NDA.  When the relevant truth was revealed concerning Ozanimod, Celgene’s stock price fell precipitously, damaging investors.   

    On February 27, 2019, AMF filed a 207-page Second Amended Consolidated Class Action Complaint against Celgene and its executives under Section 10(b) of the Securities Exchange Act. On December 19, 2019, U.S. District Judge John Michael Vasquez issued a 49-page opinion sustaining AMF’s claims as to (1) Celgene’s and Curran’s misstatements regarding Otezla being on track to meet Celgene’s 2017 sales projections, and (2) Celgene’s, Martin’s, and Smith’s misstatements about the state of Ozanimod’s testing and prospects for regulatory approval.

    On November 29, 2020, Judge Vasquez certified a class of “All persons and entities who purchased the common stock of Celgene Corp. between April 27, 2017 through and April 27, 2018, and were damaged thereby” and appointed Kessler Topaz Meltzer & Check as Class Counsel.

    On July 9, 2021, Plaintiff moved to amend the Second Amended Complaint and file the Third Amended Complaint, which alleged a new statement regarding Otezla, and added new allegations based on evidence obtained in discovery regarding Ozanimod. On February 24, 2022, Magistrate Judge James B. Clark granted the motion to amend, which Defendants appealed. On June 1, 2022, Judge Vazquez issued an opinion denying Defendants’ appeal. Expert discovery is ongoing.

    Read Second Amended Consolidated Class Action Complaint Here

    Read Opinion Granting and Denying in Part Motion to Dismiss Here

    Read Opinion Granting Class Certification Here

    Click Here to Read the Class Notice

  • CASE CAPTION          Sjunde AP-Fonden v. The Goldman Sachs Group, Inc. et al.
    COURT United States District Court for the Southern District of New York
    CASE NUMBER 1:18-cv-12084-VSB
    JUDGE Honorable Vernon S. Broderick
    PLAINTIFF Sjunde AP-Fonden (“AP7”)
    DEFENDANTS The Goldman Sachs Group (“Goldman Sachs” or the “Company”), Lloyd C. Blankfein, Gary D. Cohn, and Harvey M. Schwartz
    CLASS PERIOD February 28, 2014 to December 20, 2018, inclusive

    This securities fraud class action case arises out of Goldman Sachs’ role in the 1Malaysia Development Berhad (“1MDB”) money laundering scandal, one of the largest financial frauds in recent memory.

    In 2012 and 2013, Goldman served as the underwriter for 1MDB, the Malaysia state investment fund masterminded by financier Jho Low, in connection with three state-guaranteed bond offerings that raised over $6.5 billion. Goldman netted $600 million in fees for the three bond offerings—over 100 times the customary fee for comparable deals.

    In concert with Goldman, Low and other conspirators including government officials from Malaysia, Saudi Arabia, and the United Arab Emirates ran an expansive bribery ring, siphoning $4.5 billion from the bond deals that Goldman peddled as investments for Malaysian state energy projects. In actuality, the deals were shell transactions used to facilitate the historic money laundering scheme. Nearly $700 million of the diverted funds ended up in the private bank account of Najib Razak, Malaysia’s now-disgraced prime minister who was convicted for abuse of power in 2020. Other funds were funneled to Low and his associates and were used to buy luxury real estate in New York and Paris, super yachts, and even help finance the 2013 film “The Wolf of Wall Street.”

    AP7 filed a 200-page complaint in October 2019 on behalf of a putative class of investors alleging that Goldman and its former executives, including former CEO Lloyd Blankfein and former President Gary Cohn, violated Section 10(b) of the Securities Exchange Act by making false and misleading statements about Goldman’s role in the 1MDB fraud. As alleged, when media reports began to surface about the collapse of 1MDB, Goldman denied any involvement in the criminal scheme. Simultaneously, Goldman misrepresented its risk controls and continued to falsely tout the robustness of its compliance measures. Following a series of revelations about investigations into allegations of money laundering and corruption at 1MDB, Goldman’s stock price fell precipitously, causing significant losses and damages to the Company’s investors.

    In October 2020, the U.S. Department of Justice announced that Goldman’s Malaysia subsidiary had pled guilty to violating the Foreign Corrupt Practices Act (“FCPA”) which criminalizes the payment of bribes to foreign officials, and that Goldman had agreed to pay $2.9 billion pursuant to a deferred prosecution agreement. This amount includes the largest ever penalty under the FCPA.

    On June 28, 2021, The Honorable Vernon S. Broderick of the U.S. District Court for the Southern District of New York sustained Plaintiffs’ complaint in a 44-page published opinion.  Plaintiffs moved for class certification in November 2021.  That motion is fully briefed and pending before the Court. The case is in fact discovery.

    Read Second Amended Class Action Complaint Here

    Read Opinion and Order Granting and Denying in Part Motion to Dismiss Here 

    Read Motion for Class Certification Here

  • CASE CAPTION     In re Mylan N.V. Securities Litigation
    COURT United States District Court for the Western District of Pennsylvania
    CASE NUMBER 2:20-cv-00955-NR
    JUDGE Honorable J. Nicholas Ranjan
    PLAINTIFF Public Employees’ Retirement System of Mississippi (“MPERS”)
    DEFENDANTS Mylan N.V. (“Mylan” or the “Company”), Heather Bresch, Rajiv Malik, Anthony Mauro, and Kenneth Parks
    CLASS PERIOD February 16, 2016 through May 7, 2019, inclusive

    This securities fraud class action stems from Defendants’ promotion of Mylan’s unique ability to manufacture quality drugs across a broad product line while concealing that the Company was experiencing widespread product quality issues at its manufacturing facilities, including at its flagship manufacturing plant in Morgantown, West Virginia.

    Mylan is one of the largest drug manufacturers in the world, selling several thousand different drug products.  During the Class Period, Mylan developed and manufactured many of these products at its Morgantown plant.  The Morgantown plant, as with all drug manufacturing facilities, received inspections by the U.S. Food and Drug Administration (“FDA”)  to ensure that its quality and safety testing was complete, consistent, accurate, and free from manipulation.  Mylan publicly acknowledged that complying with FDA regulations was critical to its business and profitability. 

    Yet, despite this acknowledgement, Mylan encountered significant regulatory issues at its manufacturing plants. These issues were largely unknown to the investing public.  In 2016, a surprise FDA inspection of Morgantown substantiated a former Mylan employee’s account that, under the direct leadership of President Rajiv Malik, Mylan employees had been manipulating drug test results to achieve passing quality control results, and deliberately corrupting testing data.  Following this investigation, Malik attended meetings with the FDA where officials told him they were “stunned” by Mylan’s “egregious” violations.   Just two years later, the FDA conducted another surprise investigation into the Morgantown facility. This investigation culminated in the FDA detailing thirteen significant deficiencies in Mylan’s operations and found that, among other violations, Mylan’s attempts to remedy its previous deficiencies identified during the FDA’s 2016 inspection were “inadequate,” and that Mylan exhibited poor quality control oversight, major lapses in equipment cleaning, and ineffective controls. 

    MPERS filed a 137-page complaint in November 2020 on behalf of a putative class of investors alleging that Mylan and its former executives violated Section 10(b) of the Securities Exchange Act.  As alleged, during the Class Period,  Mylan’s CEO Heather Bresch and President Malik stressed Mylan’s ability to produce a significant volume of drugs across product lines while “meeting or exceeding” “stringent” quality standards and that this ability differentiated Mylan from competitors. Unbeknownst to investors, however, its manufacturing facilities, including at its flagship Morgantown facility, were rife with systemic, egregious, and long-standing deficiencies.  As multiple whistleblowers, Mylan employees, and the FDA told Mylan during the Class Period, the company’s quality failures were a by-product of management’s exclusive focus on production volume so as to increase Mylan’s bottom line.  These failures exposed Mylan to serious regulatory penalties, costly production disruptions, and expensive remediation. 

    At the end of the Class Period, Mylan finally admitted that its focus on generating massive volumes of drugs was unsustainable, and it had to halt production at Morgantown and dramatically reduce Mylan’s generics portfolio going forward. When the relevant truth was finally revealed to investors, Mylan’s stock price declined precipitously, materially damaging investors.      

    Defendants’ motion to dismiss is pending.

    Read Consolidated Class Action Complaint Here

  • CASE CAPTION  Washtenaw County Employees' Retirement System v Walgreen Co., et al.
    COURT United States District Court for the Northern District of Illinois
    CASE NUMBER 1:15-cv-03187
    JUDGE Honorable Sharon Johnson Coleman
    PLAINTIFF Industriens Pensionsforsikring A/S (“Industriens”)
    DEFENDANTS Walgreen Co. (“Walgreen” or the “Company”), Gregory D. Wasson, and Wade Miquelon
    CLASS PERIOD March 25, 2014 through August 5, 2014, inclusive

    This securities fraud class action case arises out of Defendants’ representations and omissions regarding Walgreen’s highly publicized earnings target of $9 billion to $9.5 billion for fiscal year 2016 (the “FY16 target”) and the negative impact of hyperinflation in generic drug prices (“generic inflation”) combined with unfavorable reimbursement contracts that caused significant reductions in Walgreen’s gross margins and earnings. During the Class Period, Defendants repeatedly reaffirmed the FY16 target and represented that Walgreen was seeing “nothing unusual” with respect to generic inflation or reimbursement pressure. Plaintiff alleges that unbeknownst to investors, the systemic shift to generic inflation caused a catastrophic impact on Walgreen’s earnings and profitability because it was “locked up” in multi-year contracts with lower reimbursement rates that did not protect against generic inflation.

    Industriens filed a 124-page complaint in August 2015 on behalf of a proposed class of investors alleging that Walgreen and its former executives, CEO Greg Wasson and CFO Wade Miquelon, violated Section 10(b) of the Securities Exchange Act by making false and misleading statements and concealing material facts about the magnitude and severity of generic inflation and reimbursement pressure and the combined impact on Walgreens’ margins and profitability, including the FY16 target. As alleged, following Walgreens’ disclosure of a $2 billion shortfall to its FY16 EBIT target as a direct result of generic inflation and reimbursement pressure, Walgreens’s stock price fell precipitously, causing significant losses and damages to the Company’s investors.

    In September 2016, the Honorable Sharon Johnson Coleman issued an order denying in part Defendants’ motion to dismiss. In March 2018, Judge Coleman certified the case as a class action. Following Industriens’s amendment of the complaint in December 2018, Judge Coleman issued an order in September 2019 denying in part Defendants’ renewed motion to dismiss. The order held that Plaintiff’s amended complaint adequately alleged several additional false and misleading statements and omissions, including statements regarding the FY16 target and the negative impact of generic inflation and reimbursement pressure on the Company’s performance.

    On November 2, 2021, the Court issued a Memorandum and Opinion and Order denying in large part Defendants’ motion for summary judgment, clearing the case to proceed to trial. 

    With trial approaching, the parties reached a $105 million cash settlement, which the Court preliminarily approved on June 29, 2022.

    Read First Amended Consolidated Complaint Here

    Read WCERS v. Walgreen Opinion and Order Granting Class Certification Here

    Read WCERS v. Walgreen Opinion and Order Granting Motion to Dismiss 

    Read WCERS v. Walgreen Opinion and Order Granting Motions for Summary Judgement Here

    Read WCERS v. Walgreen Order Granting Preliminary Approval 

Landmark Results

  • 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.

  • 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.

  • 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.

  • 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.