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Tauber, Andrew
Partner
Washington

Ph: 202.263.3324
Fax: 202.263.5324
atauber@mayerbrown.com

Tauber is a “go-to star[]” and “a brilliant … legal thinker” who is “an expert written and oral communicator.”

The Legal 500 United States (2012)

Overview

Andrew Tauber is co-leader of Mayer Brown’s Supreme Court & Appellate practice. With substantial experience in matters of federal preemption, he devotes much of his practice to cases involving the medical-device and railroad industries, but has successfully briefed and argued a wide variety of cases for a wide variety of clients on issues as diverse as second-hand asbestos claims, the proper measure of damages in product-liability cases, ERISA liability for post-divestment benefit claims, attorney-client privilege, antitrust liability for pre-bankruptcy conduct, and First Amendment protections for commercial speech.

A co-author of the treatise Federal Appellate Practice, Andy regularly represents clients in the US Supreme Court, the various US Courts of Appeals, and state appellate courts throughout the country.

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.

In 2013, Andy was awarded the Defense Research Institute’s G. Duffield Smith Outstanding Publication Award for his article, A Powerful Tool to Wield Early: How to Argue Medical Device Preemption.

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.

Experience 

  • CSX Transportation, Inc. v. Pitts, 61 A.3d 767 (Md. 2013). Convinced court that claims brought under the Federal Employer’s Liability Act are subject to preclusion by the Federal Railroad Safety Act, and that, contrary to prior state-law precedent, ballast-claims in particular are precluded when they arise from ballast used to support railroad tracks. Also convinced court that, contrary to prior Maryland precedent, railroads facing claims for future wage loss have a right to introduce statistical evidence of railroad workers’ average retirement age.
  • Crowther v. Consolidated Rail Corp., 680 F.3d 95 (1st Cir. 2012).  Persuaded court that evidence of the plaintiff’s receipt of disability benefits was admissible to prove that the plaintiff was malingering.
  • Walker v. Medtronic, Inc., 670 F.3d 569 (4th Cir. 2012), cert. denied __ S. Ct. __ (2012).  Convinced court of appeals that state-law claims arising from the alleged malfunction of an FDA-approved medical device are preempted by the Medical Device Amendments to the Food, Drug and Cosmetic Act, and then persuaded Supreme Court not to review that decision.
  • Simpkins v. CSX Transp., Inc.,  965 N.E.2d 1092 (Ill. 2012).  Persuaded state supreme court that plaintiff had failed adequately to allege essential element of tort claim arising from alleged second-hand exposure to asbestos.
  • 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 Transp., 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 Transp., 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

 
 
 
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