Andrew B. Kay

Representative Matters

Regulatory Litigation

• As lead counsel, secured a preliminary injunction against the U.S. Department of Labor (DOL) in litigation challenging aspects of DOL's Fiduciary Rule that would have prohibited financial institutions from resolving disputes on an individual basis in arbitration. The anti-arbitration condition in DOL's BIC Exemption Rule would have required financial institutions to enter into "Best Interest Contracts" with their customers, which mandated that judicial class actions be available as a means to resolve disputes arising out of advice provided to IRA customers. The federal district court for the District of Minnesota enjoined DOL from enforcing the Best Interest Contract Exemption's anti-arbitration condition against the client, because the condition was contrary to the Federal Arbitration Act
• As lead counsel, won a declaratory judgment and permanent injunction against California's unclaimed property regulator, the Office of State Controller (SCO), invalidating rules that SCO had adopted in connection with its regulation of life insurers' obligations under California's unclaimed property law. SCO's now-enjoined rules required life insurers to periodically search external databases to determine whether insureds were deceased, and to start the dormancy period under the unclaimed property laws upon the insured's death, regardless of whether the insurer had been provided with proof of death. The California state court invalidated and enjoined these rules as illegal underground regulations that had been adopted secretly by SCO and without complying with the Administrative Procedures Act
• Secured a highly favorable decision from the Florida District Court of Appeal as lead counsel in litigation against the Florida Department of Financial Services, in connection with its regulation of life insurers' unclaimed property escheatment obligations. The Florida appeals court invalidated the regulator's interpretation of Florida law, under which it had been aggressively regulating the life insurance industry. The victory caused the Florida Legislature to amend Florida law with regard to life insurers' prospective obligations under the unclaimed property laws
• On behalf of a life insurance company, obtained a federal court injunction against a state insurance commissioner that enjoined the commissioner from refusing to approve a mandatory arbitration provision for resolution of disputes contained in client's insurance contracts
• Currently defending a major life insurance company in connection with a multi-state unclaimed property audit regarding the escheatment of life insurance proceeds

Class Action and Consumer Litigation

• As trial counsel, successfully defended claims against a life insurance company in a mass arbitration involving claims asserted by more than 300 insureds alleging fraudulent and unfair sales and marketing practices
• As national arbitration counsel for a life insurance company, successfully litigated motions to compel arbitration in numerous federal and state courts
• Litigation counsel for a liability insurance company in putative class action alleging fraud in connection with sales and marketing of insurance products. After discovery, obtained a successful settlement that absolved client of responsibility where settlement obligations were borne by the co-defendant

Commercial Litigation

• Lead counsel for a specialty chemicals manufacturing company in an indemnification action in New York state court arising out of client's creation through an acquisition by a private equity buyer. As the plaintiff, won summary judgment entitling the client to complete indemnification for a $130 million claim. Successfully defended the judgment on appeal to the Appellate Division and New York Court of Appeals
• Trial counsel for a telecommunications equipment manufacturer in a patent infringement action related to cellular base station equipment. Successfully obtained a pre-trial ruling preventing the plaintiffs from presenting a nine-figure damages claim to the jury, and obtained a jury verdict of non-infringement
• Defended a medical device manufacturer in a trade secret misappropriation case involving the ownership of the client's patent related to its needle-free intravenous valves. After assuming defense of the case during the post-trial proceedings, on appeal to the Ninth Circuit, won the reversal of the district court's order that had assigned ownership of the client's patent to the plaintiffs
• Trial counsel for a generic drug manufacturer in an ANDA patent infringement action concerning the client's efforts to market a generic drug for the treatment of Parkinson's disease
• Litigation counsel for a satellite launch company in an action brought in connection with a Chapter 11 debtor case. Successfully defended against claims that the client was responsible for damage to a satellite in connection with a pre-launch accident at a launch facility in Kazakhstan

M&A and Shareholder Litigation

• Defended a construction contracting company in a range of shareholder disputes, including a securities fraud class action and a shareholder fiduciary duty action attempting to enjoin the client's $850 million merger. Successfully opposed an attempt to enjoin the merger, and obtained dismissal of the securities fraud case
• Litigation counsel for a home mortgage lender in a series of shareholder and related disputes, including securities fraud class actions and fiduciary duty class actions. Defeated the shareholders' attempt to enjoin the client's acquisition by a private equity buyer. Represented the client in related regulatory investigations
• Litigation counsel for special committee of the board of directors of a publicly traded company that provides transactional television services and distributes general motion picture entertainment. In response to a proxy contest initiated by a minority shareholder group seeking to replace four of the company's six directors, pursued litigation asserting that the group had violated Section 13(d) of the Securities Exchange Act of 1934, as well as the company's bylaws. Secured a successful settlement, with an agreement by the minority group to terminate their proxy contest
• Lead counsel for an insurance company in connection with a governance-related derivative lawsuit. Obtained a successful settlement that dismissed the claims of a dissident group

Education

• J.D. magna cum laude University of Michigan Law School 1997
• B.A. Cornell University 1994

Bar Admissions

• District of Columbia
• Illinois

Clerk Experience

• Honorable Joel M. Flaum, U.S. Court of Appeals for the Seventh Circuit

Professional Memberships and Activities

• Member, Association of Life Insurance Counsel
• Member, Association of Fraternal Benefits Counsel

• Law360, MVP, Insurance Practice, 2018

Volunteerism

• Member, Board of Trustees of Norwood School; chair, Development Committee, Norwood School
• Member, Development and Alumni Relations Committee, University of Michigan Law School
• Member, Board of Directors, Communities in Schools of the Nation's Capital (CIS); chair, CIS Audit Committee; co-chair, CIS Development Committee
• Former board president and trustee, Aidan Montessori School