Jay P. Lefkowitz, P.C. 
Professional Profile
Mr. Lefkowitz is a senior litigation partner in the New York City office of Kirkland & Ellis LLP and a member of the Firm's Worldwide Management Committee. He is also an adjunct professor of Administrative Law at Columbia Law School. Mr. Lefkowitz has acted as lead trial and appellate counsel on cases (both individual and class) in a wide variety of substantive areas, including securities, shareholder derivative, antitrust, intellectual property, and breach of contract, as well as in several white collar defense matters. He also has conducted numerous internal investigations for public companies and audit committees. He represents investment banks, hedge funds, pharmaceutical companies, and telecommunications companies in litigation and in proceedings before the DOJ, SEC, FINRA, FCC, FDA and various State Attorneys General.
Mr. Lefkowitz has had a distinguished career in public service. He served from 2005-2009 as the United States' Special Envoy on Human Rights in North Korea. From 2001-2003, Mr. Lefkowitz served in the White House as Deputy Assistant to President Bush for Domestic Policy and as General Counsel in the Office of Management and Budget. Earlier in his career, he served in the White House as Director of Cabinet Affairs and Deputy Executive Secretary to the Domestic Policy Council for President George H. W. Bush.
Mr. Lefkowitz's work as a lawyer and diplomat has been featured in many newspapers and magazines throughout the world. He has been profiled in The Washington Post, "A Hard-Nosed Litigator Becomes Bush's Policy Point Man;" Global Forensics, "Subprime Crisis Stirring Up New Wave of Litigation;" the Washington Post, "What Ever Happened to Jay Lefkowitz?;" The American Lawyer, "Blackboard Jungle;" The National Law Journal, "Republican Connected and Rising;" Columbia College Today, "Shuttle Diplomat;" and Aish.com, "Kosher in the White House."
Mr. Lefkowitz has served as lead counsel for Fannie Mae, General Motors, Loral Space & Communications, News Corporation, Northwest Airlines, Qwest Communications Corporation, Tenet Healthcare Corporation, Teva Pharmaceuticals, Time Warner, UBS Warburg, Verizon Wireless, and many hedge funds and private equity firms.
Representative Matters
Representative Commercial Matters
Boca Raton Community Hospital, Inc. v. Tenet Healthcare Corporation
Represented Tenet Healthcare successfully in a class action case on behalf of 3,500 hospitals alleging that Tenet's charging practices violated RICO and seeking $2 billion on behalf of the proposed class. The U.S. district court denied plaintiff's motion to certify a nationwide class of acute care hospitals and then granted summary judgment for the defendant, and the Eleventh Circuit Court of Appeals upheld the lower court's decision.
Chicago Teachers Union v. K12,Inc. and Chicago Virtual Charter School, et al.
Represented K12 Inc. and Chicago Virtual Charter School (CVCS) in a suit brought against CVCS by the Chicago Teachers Union. The union alleged that the virtual nature of CVCS' educational model violated the Illinois Charter Schools Law's requirement that charter schools be "non-home based." The court ruled in favor of K12 and CVCS and granted summary judgment.
In re Loral Space & Communications Consolidated Litigation
Represented three individual directors of Loral Space & Communications, Inc., including its Chief Executive Officer in a derivate suit and a shareholder class action case arising from a $300 m financing transaction between Loral and its controlling shareholder. The lawsuits, filed in Delaware Chancery Court, alleged that the Loral directors that had breached their fiduciary duties by giving the controlling shareholder a preferential deal." After a one-week trial in March 2008, the court did not find that the directors had breached their fiduciary duties and refused to impose liability.
XL Specialty Insurance v. Loral Space & Communications
Represented Loral in a suit brought by its insurance company seeking declaratory judgment that there was no insurance coverage for a $19 million fee award granted to plaintiffs' counsel in underlying litigation. The parties brought cross motions for summary judgment. After hearing oral argument, the court ruled that under the plain language of the insurance policy there was clear coverage for the $19 million fee award, and granted Loral's summary judgment motion.
CMF Cayman, Ltd., et. al. v. Heckler and Koch Beteiligungs GmbH
Represents a German company against a suit brought by several hedge funds and Merrill Lynch International claiming that the company breached the terms of a "Payment-in-Kind" loan. The plaintiffs are also suing the directors of the company on an alter ego liability theory and bringing additional claims for intentional and constructive fraudulent conveyances.
Representative Securities Matters
Straily v. UBS Financial Services Inc.
Represented UBS in a successful defense of an action brought in the United States District Court for the District of Colorado, in which the court granted summary judgment in favor of UBS in a putative class action seeking over $650 million in damages on behalf of the class. The suit alleged that UBS had breached fiduciary duties and the implied covenant of good faith and fair dealing when it implemented a new program under which uninvested cash, which had previously been automatically swept from customers' brokerage accounts to UBS money market funds, was swept instead into FDIC-insured deposit accounts at a UBS affiliate, UBS Bank USA.
Electronic Trading Group v. UBS Warburg
Defended UBS in a putative class action alleging that the firm's prime brokerage unit violated antitrust laws by fixing prices for the interest charged on short sales, particularly naked short sales. The successful defense was upheld on appeal.
Brokerage Practices California Litigation
Represents a major investment bank in several cases nationwide challenging the client's prime brokerage practices and interest charges on naked short sales under California law.
NASD Procedural Rule 9800 Et Seq. Litigation
Represented a broker-dealer that had been the subject of the first-ever application of NASD Procedural Rule 9800 et seq., which permits the NASD to seek "temporary cease and desist orders" under certain conditions. Because the scope of the NASD's authority to impose affirmative obligations was a matter of "first impression," the National Adjucatory Council ("NAC") agreed to review the Hearing Panel's decision. The NAC agreed the NASD had overstepped its authority to fashion relief under Rule 9840 when it ordered affirmative action (in this case the unwinding of a transaction and the collection of money from a non-member) that went well beyond the cessation of "ongoing violative conduct."
NASDAQ-Listed Company SEC Investigation
Conducted an internal investigation of a NASDAQ-listed broker-dealer that was the subject of an SEC fraud investigation. Kirkland interviewed numerous witnesses here and throughout Europe, and made numerous findings and recommendations regarding the company's sales practices, accounting practices, public disclosures, financial controls, records retention practices and personnel decisions. Kirkland worked with and appeared before the SEC, the United States Department of Justice, the NASD and the NASDAQ Listing Qualifications Panel.
Tenet Healthcare SEC Investigation
Represented Tenet Healthcare Corporation and certain current and former officers and directors in a formal SEC investigation concerning whether Tenet's public disclosures of Medicare outlier and stop-loss payments under managed care contracts were misleading or otherwise inadequate, as well as whether certain former and current Tenet officers and directors engaged in insider trading. The matter was settled for a small financial penalty with no imposition of a monitor.
Hedge Fund SEC Investigation
Represented a New York-based hedge fund and its principal in connection with a Securities and Exchange Commission investigation of the fund's short trading related to its investments in PIPEs (Private Investments in Public Equity). The fund had been one of the largest investors in PIPEs, with several hundred transactions. After a two year investigation involving testimony and expert analysis, in June 2008, the SEC agreed to close its investigation without bringing any charges against any of the parties involved.
Picard v. Herald Fund SPC
Represents Herald Fund SPC in an adversary proceeding brought by the Trustee overseeing the liquidation of Bernard L. Madoff Investment Securities LLC, pending in the United States Bankruptcy Court for the Southern District of New York. The lawsuit seeks avoidance of over $550 million in alleged preferences and fraudulent conveyances. After the Fund filed a motion to dismiss all claims, the Trustee voluntarily dismissed nearly half of his claims against the Fund.
In re Bernard L. Madoff
Represents several foreign entities in relation to the liquidation of Bernard L. Madoff Investment Securities LLC. These representations have included filing claims on each client's behalf, objecting to claim determinations, and responding to document subpoenas.
Representative Internal Investigation Matters
NASDAQ-Listed Company SEC Investigation
Conducted an internal investigation of a NASDAQ-listed broker-dealer that was the subject of an SEC fraud investigation. Kirkland interviewed numerous witnesses here and throughout Europe, and made numerous findings and recommendations regarding the company's sales practices, accounting practices, public disclosures, financial controls, records retention practices and personnel decisions. Kirkland worked with and appeared before the SEC, the United States Department of Justice, the NASD and the NASDAQ Listing Qualifications Panel.
Tenet Healthcare SEC Investigation
Represented Tenet Healthcare Corporation and certain current and former officers and directors in a formal SEC investigation concerning whether Tenet's public disclosures of Medicare outlier and stop-loss payments under managed care contracts were misleading or otherwise inadequate, as well as whether certain former and current Tenet officers and directors engaged in insider trading. The matter was settled for a small financial penalty with no imposition of a monitor.
Madoff-Related Investigations
Represented two not-for-profit institutions in New York State in connection with regulatory inquiries related to losses due to Maddoff-related investments. Conducted internal investigations and coordinated revision of internal corporate controls and bylaws. Made presentations to regulators.
Fortune 50 Company Investigation
Represented Fortune 50 Company in connection with SEC investigation into allegations of earnings smoothing. Interviewed dozens of employees and executives; made presentations to regulators.
Fortune 100 Corporation Investigation
Represented Fortune 100 Corporation in connection with DOJ and SEC investigations into allegations of fraudulent accounting practices. Developed protocol for internal investigations. Conducted hundreds of interviews of employees and executives; made presentations to regulators.
Representative Pharmaceutical Matters
Ranbaxy Labs & Teva Pharmaceuticals USA, Inc. v. Leavitt, et al.
Mr. Lefkowitz represented Teva Pharmaceuticals USA, Inc. in a dispute with the U.S. Food and Drug Administration and argued that the FDA acted arbitrarily and capriciously when it denied IVAX Pharmaceuticals (since acquired by Teva) 180 days of marketing exclusivity for its generic version of Merck's blockbuster drug Zocor following Merck's request to remove the patents claiming Zocor from the FDA' Orange Book list of patents. The D.C. Circuit held that the agency's conduct violated the plain language of the Hatch-Waxman Act and was fundamentally inconsistent with the Act's incentive scheme.
Apotex, Inc. v. Food and Drug Administration, et al.
Mr. Lefkowitz represented Teva Pharmaceuticals USA, Inc. in its fight against the U.S. Food and Drug Administration over the exclusive rights to sell a generic form of Bristol-Myers Squibb Co.'s Pravachol cholesterol drug. The FDA had ruled that a stipulated dismissal of a lawsuit between Bristol-Myers Squibb and Apotex had triggered Teva's six months of exclusivity. Following argument, the U.S. District Court for the District of Columbia reversed the FDA, instead ruling that a stipulated dismissal is not a "decision of a court" or a "holding" as required by the Act and granted judgment and injunctive relief to Teva. FDA appealed that decision to the D.C. Circuit, which vacated the district court's decision and remanded the matter to FDA for reconsideration in light of the district court's analysis. On remand, FDA fully adopted the district court's position and awarded Teva exclusivity. When another applicant challenged FDA's post-remand award of exclusivity, Mr. Lefkowitz successfully defended the agency's decision in both the district court and D.C. Circuit.
Biovail Corp. v. FDA and Biovail Corp. v. FDA,
Mr. Lefkowitz represented business partners Teva Pharmaceuticals USA, Inc. and Impax Laboratories, Inc. in two cases challenging FDA's approval of Impax's generic version of Wellbutrin XL antidepressant. In those cases, brand manufacturer Biovail alleged first that FDA could not approve Impax's generic version of Wellbutrin XL because Impax's approved product labeling would have been misleading, and second, that FDA approval of Impax's ANDA was in any event blocked by a 30-month regulatory stay of approval based on Biovail's filing of a patent infringement lawsuit against another strength of the product. In the first case, Mr. Lefkowitz intervened on behalf of Teva and Impax, and persuaded the U.S. District Court for the District of Columbia to reject Biovail's challenges in both TRO and preliminary injunction proceedings. In the latter case, Mr. Lefkowitz argued for Teva and Impax in emergency TRO proceedings, successfully obtaining an oral ruling from the U.S. District Court for the District of Maryland holding that FDA's approval was not blocked by the 30-month stay.
Representative White Collar Matters
United States of America v. Jeffrey Stein, et al.
Defended an investment manager in what has been described as the largest criminal tax fraud prosecution in United States history. The client was charged with 17 co-defendants in a wide ranging conspiracy to evade taxes and defraud the IRS through allegedly abusive tax shelters in the Southern District of New York. The indictment charges that the defendants—most of whom were employees of KPMG—developed sham tax shelter transactions and marketed them to hundreds of wealthy individuals, evading roughly $11 billion in taxes.
Representative Product Liability Matters
General Motors C/K Pickup Truck Litigation
Represented General Motors in more than one dozen product liability lawsuits nationwide; represented General Motors in several evidentiary proceedings in which plaintiffs sought exceptions to GM's attorney-client and/or work product privileges under the crime-fraud doctrine; successfully brought mandamus petitions in a variety of federal courts to reverse district court decisions; and led a successful effort to have a plaintiff's attorney sanctioned with a personal contempt citation for $190,000 for violation a court order.
Washington Square Park Litigation
Trial counsel for General Motors in a highly publicized case in state court arising out of one of the worst automobile accidents in New York City history. The 24 plaintiffs included six decedents and others with significant brain injuries, burns and loss of limbs. Defect allegation related to the lack of a brake-transmission shift interlock in all GM 1980s vehicles. Plaintiffs sought compensatory and punitive damages. Favorable settlement reached after six weeks of trial.
Representative Constitutional & Religious Liberty Matters
State of Wisconsin School Voucher Program Litigation
Represented the State of Wisconsin at the Wisconsin Supreme Court and later the United States Supreme Court in its successful litigation to become the first state in the country to implement a school voucher program.
Concerned Citizens of Carderock v. Hubbard
Defended the Adat Shalom Reconstructionist Congregation in a lawsuit brought by residential owners in the town of Carderock, Maryland challenging the constitutionality of a zoning ordinance, arguing that it amounted to an impermissible endorsement of religion within areas zoned for single-family residential use. The U.S. District Court for the District of Maryland granted the defendant's motion to dismiss.
Other Distinctions
In 2004, Mr. Lefkowitz represented the U.S. at the International Conference on Anti-Semitism in Berlin, Germany, sponsored by the Organization for Security and Cooperation in Europe. In 1990, Mr. Lefkowitz served as a member of the U.S. delegation to the United Nations Human Rights Commission in Geneva, Switzerland.
Publications
"Bookshelf: Judaism: A Way of Being, by David Gelernter, The Genesis of a People," The Wall Street Journal, March 29, 2010
"Obama vs. the Regulators," The Washington Post, August 6, 2009
"AIDS and the President - An Inside Account," Commentary, January 2009
"Let's Confront North Korea on Human Rights," Wall Street Journal, December 23, 2008
"Why North Koreans Need Us," The New York Sun, May 5, 2008
"Truth in Advertising," The Wall Street Journal, January 25, 2008
"Stem Cells and the President - An Inside Account," Commentary, January 2008
"Science Obviates Politics," The New York Sun, January 11, 2007
"For A Few Dollars More," The Wall Street Journal, January 10, 2007
"Homes Away from Home," The Wall Street Journal, March 17, 2005
"The Election and the Jewish Vote," Commentary, February 2005
"It's Time to Lengthen Strides in Tort Reform," Investor's Business Daily, August 31, 2004
"Houses of Worship - Singled Out," The Wall Street Journal, July 30, 2004
"A Spectrum of Abuse at FCC?," The Washington Times, July 25, 2004
"Telecommons Turf Tango," The Washington Times, June 24, 2004
Testimony before the Commission on Security and Cooperation in Europe (the Helsinki Commission), "Government Actions to Combat Anti-Semitism in the OSCE Region," June 16, 2004
Testimony at the OSCE Conference on Anti-Semitism, "Workshop on Promoting Tolerance: Media, i.a., Internet, NGOs and Religious Leaders," April 28, 2004
"Three Strikes for the FCC - Government Regulation Stifles the Telecom Industry," National Review, March 18, 2004
"Strike Up the Broadband," The Weekly Standard, January 26, 2004
"Bookshelf - Ugly and Venomous," The Wall Street Journal, January 22, 2004
"The 9/11 Deadline," The Wall Street Journal, December 16, 2003
"Malarkey And Stem Cells," The Washington Post, November 8, 2003
"The Facts on Stem Cells," The Washington Post, October 30, 2003
"Does the Jewish Vote Count?," Commentary, March 2001
"A Critique of the FCC's Decision to Retain Limits on National Television Station Ownership," Telecommunications & Electronic Media News, Fall 2000
"Bookshelf: The Supreme Court and Its Most Famous Justice, Law Without Values," by Albert W. Alschuler, The Wall Street Journal, December 14, 2000
"It's The Law, Stupid, How many lawyers does it take to win an election?," The Weekly Standard, November 20, 2000
"Books in Review: Jew vs. Jew: The Struggle for the Soul of American Jewry," by Samuel G. Freedman, Commentary, October 2000
"Clinton, Not the Courts, Is Condemning Elian," The Wall Street Journal, June 2, 2000
"Bookshelf: The Warren Court and American Politics, by Lucas A. Powe, Jr., If the Legislature Won't Do It, We Will," The Wall Street Journal, March 20, 2000
"A Modest Tort Proposal," The Weekly Standard, August 16, 1999
"Bookshelf: The Lord Will Gather Me In, by David Klinghoffer, Torah and Truth," The Wall Street Journal, December 15, 1998
"Supreme Court on School Choice: 50 Years of Precedents," The Wall Street Journal, November 23, 1998
"Treason of a Clerk, On the Vast, Right-Wing Conspiracy at the Supreme Court," The Weekly Standard, April 27, 1998
"The NPR Log Book, No: All Opinions Are Not Entitled To Equal Air Time," ABA Journal, June 1996
"Decade of Greed?," The Public Interest, No. 124, Summer 1996
"Books in Review: Ultimate Answers, Think A Second Time, by Dennis Prager," Commentary, Vol. 101, No. 5, May 1996
"Overcoming Posner," The Public Interest, No. 120, Summer 1995
"The Paradox of a Great Ethnic Success," The Wall Street Journal, May 10, 1995
"Managed Competition Is Unhealthy – for Baseball," The Washington Times, August 2, 1994
"Books in Review: Romancing the State, The Fatal Embrace,: Jews and The State," by Benjamin Ginsberg, Commentary, January 1994
"Books in Review: The Baseball Business, Play Ball: The Life and Troubled Times of Major League Baseball," by John Feinstein, Commentary, Vol. 96, No. 3, September 1993
"GOP Jujitsu Strategy," The Washington Post, June 23, 1993
"Where Dad Belongs," The Wall Street Journal, June 18, 1993
"Our Students, Still at Risk," The New York Times, May 3, 1993
"The Next Rebellion: Parents vs. The Liberals," The Washington Times, April 23, 1993
"Jewish Voters & the Democrats," Commentary, April 1993
"The Missing Linkage," The Jerusalem Report, March 14, 1991
"Law Review Errs With Affirmative-Action Plan," Manhattan Lawyer, May 23, 1989
"Affirmative Action Can Hurt Those It Is Intended to Help," The Times Union, February 7, 1989
"Shultz Had Legal Right to Bar Arafat," The Jewish Week, Inc., December 9, 1988Seminars
Republican Jewish Coalition Seminar – Speaker, "Post Election Analysis & the Future of the GOP," January 2009
Young Israel of Century City Scholar in Residence, Weekend of October 24-26, 2008
American Enterprise Institute Conference "The North Korean Problem: Toward a Diplomatic Solution in 2008?" – Keynote Speaker, "North Korean Human Rights & US National Security," January 2008
Yale Political Union Debate – Panelist, "North Korea and U.S. Interests," October 2007
United Jewish Federation of Northeastern New York – Pacesetter Luncheon Speaker, "Conflicts and Contradictions: The American Jewish Community and Israel," June 2007
Columbia Law School Dean's Visiting Speaker Luncheon Series – Speaker, "Perspectives on the Law," February 2007
United States Mission to the United Nations, Economic and Social Council Presentation – Speaker, "Shining a Light: Human Rights Abuses in North Korea," December 2006
Asia Society Symposium "Can Human Rights Concerns Be Addressed in a Comprehensive Northeast Asia Security Regime" – Keynote Speaker, May 2006
Columbia University's Kraft Lecture Series – Panelist, "Is Religion Political?" March 2006
American Bar Association's Annual National Conference – Presented "Preserving Exclusivity: Navigating What's at Stake Under the Hatch-Waxman Act," January 2006
American Bar Association's Aviation and Space Law Committee Conference – Panelist, "Aviation Security and Privacy and Discrimination," October 2005.
Manhattan Institute's Center for Legal Policy Conference "9/11 Victim Compensation Fund: Successes, Failures, and Lessons for Tort Reform" – Opening Remarks, January 2005.
UJA Young Leadership Conference "Perspectives on U.S. Policy in the Middle East" – Keynote Speaker, June 2004
Manhattan Institute's Center for a Digital Economy Conference "Avoiding a Tragedy of the Telecommons" – Panelist, "How are Regulatory Incentives Affecting Competition and Investment?" May 2004
U.S. Chamber of Commerce's Alternatives to Litigation Conference – Panelist, "Administrative Compensation Systems," April 2004
Courts
United States Supreme Court, as well as numerous federal district and appellate courts.
