As a member of Mayer Brown’s Supreme Court & Appellate practice, Andy focuses on railroad, federal preemption, product liability, and First Amendment cases, but has successfully briefed and argued a wide variety of other issues, including the denial of ERISA benefits, attorney-client privilege, and antitrust liability for pre-bankruptcy conduct.  A co-author of the treatise Federal Appellate Practice, he regularly represents clients in the US Supreme Court, the various US Courts of Appeals, and state appellate courts.

In addition to his purely appellate work, Andy also works closely with trial lawyers to craft and preserve legal arguments for later appellate review by drafting motions to dismiss, motions in limine, and proposed jury instructions.

Prior to joining Mayer Brown in 2005, Andy spent five years with a major New York firm, before which he served as a law clerk to the Hon. John G. Koeltl of the United States District Court for the Southern District of New York.  He is fluent in German.

Notable Engagements 

• Tam Travel, Inc. v. American Airlines, Inc., 131 S. Ct. 896 (2011) (mem.).  Successfully opposed petition for a writ of certiorari in an antitrust case involving pleading standards under Twombly and the discharge of claims arising from alleged pre-bankruptcy conduct.
• Gautieri v. CSX Transportation, Inc., 2010 WL 2347059 (Pa. Super. Ct. 2010).  Persuaded state appellate court to overturn a $1,400,000 verdict based on evidentiary and instructional errors in a case brought under the Federal Employers’ Liability Act.
• Yuma Anesthesia Medical Services LLC v. Fleming, 130 S. Ct. 3468 (2010) (mem.).  Retained to obtain Supreme Court review of Ninth Circuit decision holding that independent contractors are covered by the employment discrimination provision of the Rehabilitation Act.
• Standard Insurance Co. v. Lindeen, 130 S. Ct. 3275 (2010) (mem.).  Authored amicus brief on behalf of several entities urging the Supreme Court to review, and ultimately reverse, a decision in which the Ninth Circuit held that Employee Retirement Income Security Act (ERISA) does not preempt state laws banning so-called discretionary clauses in insurance policies that fund ERISA-governed benefit plans.
• Nickels v. Grand Trunk Western R.R., Inc., 130 S. Ct. 1136 (2010) (Mem.).  Successfully opposed petition for a writ of certiorari in case involving the Federal Railroad Safety Act’s preclusion of claims brought under the Federal Employers’ Liability Act.
• In re Travel Agent Comm’n Antitrust Litig., 583 F.3d 896 (6th Cir. 2009).  Obtained and successfully defended on appeal dismissal of antitrust claim arising from alleged pre-bankruptcy conduct of restructured airline.
• Enten v. District of Columbia, 675 F. Supp. 2d 42 (D.D.C. 2009).  Represented individual wishing to sell political buttons on city sidewalks in suit alleging First Amendment and statutory violations.
• Greenwell v. Parsley, 130 S. Ct. 64 (2009) (Mem.).  Represented individual in case presenting the question of whether a public employee has a First Amendment right to run for elected office.
• Cooper v. CSX Transportation, Inc., decided sub nom. Nickels v. Grand Trunk Western R.R., Inc., 560 F.3d 426 (6th Cir. 2009).  Successfully argued case on behalf of two defendant railroads, persuading the court that regulations issued under the Federal Railroad Safety Act preclude certain tort claims brought under the Federal Employers’ Liability Act.
• General Motors Corp. v. Grenier, 981 A.2d 524 (Del. 2009).  Obtained remand on behalf of defendant automobile manufacturers in appeal of multimillion dollar jury verdict in asbestos litigation that presents the question of what type of evidence, if any, is admissible under Daubert to prove causation when extensive epidemiology unanimously demonstrates that persons such as plaintiff are not at increased risk from the specific substance in question.
• Wyeth v. Levine, 129 S. Ct. 1187 (2009).  Authored amicus brief on behalf of Product Liability Advisory Council and U.S. Chamber of Commerce that helped convince the Supreme Court to grant review in a case presenting the question of whether FDA approval of a prescription drug label impliedly preempts state law tort claims challenging the adequacy of that label, and authored an amicus brief on behalf of the Chamber at the merits stage arguing that FDA approval of a drug label does in fact preempt such claims.
• In re Medtronic, Inc. Sprint Fidelis Leads Prods. Liab. Litig., 592 F. Supp. 2d 1147 (D. Minn. 2009).  Co-authored briefs on behalf of defendant manufacturer in multidistrict litigation that persuaded court to dismiss with prejudice state-law fraud and product liability claims relating to an FDA-approved medical device on the ground that such claims are either expressly or impliedly preempted under the Food, Drug, and Cosmetic Act.
• Riegel v. Medtronic, Inc., 552 U.S. 312 (2008).  As co-counsel to medical device manufacturer, persuaded the Supreme Court that the Medical Device Amendments to the Food, Drug, and Cosmetic Act expressly preempt certain state law tort claims arising from the use of a Class III medical device that had received FDA premarket approval.
• Galarneau v. Merrill Lynch, Pierce, Fenner & Smith Inc., 504 F.3d 189 (1st Cir. 2007).  Obtained reversal of multimillion dollar punitive damage award in defamation action brought by former employee.
• Coffin v. Bowater Inc., 501 F.3d 80 (1st Cir. 2007).  Obtained and then successfully defended summary judgment in employment benefit class action brought by retirees of a divested subsidiary.
• Teleglobe USA, Inc. v. BCE, Inc., 493 F.3d 345 (3d Cir. 2007).  Authored appellate brief concerning the operation of the attorney-client privilege in the parent-subsidiary context.
• Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006).  Represented petitioner challenging retroactive application of federal immigration statute.
• Jones v. Hulick, 449 F.3d 784 (7th Cir. 2006).  Appointed by court to represent prisoner in habeas corpus proceeding.
• Penry v. Johnson, 532 U.S. 782 (2001).  Successfully challenged constitutionality of a Texas death sentence.

Education 

Yale Law School, JD, 1999; Editor, Yale Law Journal • Massachusetts Institute of Technology, PhD, 1997 • Wesleyan University, BA, 1984

Admitted

• District of Columbia
• New York
• US Supreme Court
• US Court of Appeals for the First, Third, Fourth, Fifth, Sixth, Seventh, and Federal Circuits
• US District Court for the District of Columbia, the Southern District of New York, the Eastern District of New York, and the District of Colorado