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Patricia I. Avery

Attorney Profile

Top Rated Securities Litigation Attorney in New York, NY

Wolf Popper LLP
845 3rd Avenue, 12th Floor
New York, NY 10022-6601
Phone: 212-451-9619
Fax: 212-486-2093
Selected to Super Lawyers: 2007, 2014 - 2021
Licensed in New York Since: 1977
Practice Areas: Securities Litigation (90%), Consumer Law (10%)
Attorney Profile

Patricia I. Avery is a senior partner at the law firm of Wolf Popper LLP in New York, New York. Ms. Avery has over 43 years of legal experience and focuses her practice primarily on securities litigation. She serves clients in New York City and the surrounding areas.

In addition to securities litigation, Ms. Avery handles cases involving antitrust, consumer fraud, corporate transactions and derivative litigation. She is an experienced litigator on the domestic and international levels.

Over the course of her career, Ms. Avery has effectively handled numerous complex securities cases, both for individual clients and on a class action basis, helping consumers and investors who are victims of fraud. She has tried cases at the state and federal levels, serving as both counsel and co-counsel.

Recognizing her high legal capability and ethical standards, Ms. Avery is AV Preeminent* peer-review rated through Martindale-Hubbell, their highest rating. She is the co-author of articles on securities law and materials for the Practicing Law Institute. She stays involved in her legal community through participation in professional organizations, belonging to the New York County Lawyers Association, the New York State Bar Association and the American Bar Association.

Ms. Avery earned a bachelor’s degree from New York University. She went on to earn her law degree from New York University School of Law. She holds a license to practice law before all New York state courts; federal courts in New York, Texas and Illinois; several appellate courts; and the Supreme Court of the United States.

*AV®, AV Preeminent®, Martindale-Hubbell Distinguished and Martindale-Hubbell Notable are certification marks used under license in accordance with the Martindale-Hubbell certification procedures, standards and policies. Martindale-Hubbell® is the facilitator of a peer review rating process. Ratings reflect the anonymous opinions of members of the bar and the judiciary. Martindale-Hubbell® Peer Review Rating™ fall into two categories – legal ability and general ethical standards.

Practice Areas
  • 90%Securities Litigation
  • 10%Consumer Law

Selections

9 Years Super Lawyers
  • Super Lawyers: 2007, 2014 - 2021

About Patricia I. Avery

First Admitted: 1977, New York

Professional Webpage: https://www.wolfpopper.com/attorney/patricia_i_avery

Scholarly Lectures/Writings

  • Ms. Avery was an annual contributor to the Survey of Securities Class Actions and Derivative Suits, American Bar Association, Litigation Section, Securities Litigation Committee, Subcommittee, for over 5 years. She is also the co-author of "To Stay or Not to Stay," Practicing Law Institute (1996); "Selection of Lead Plaintiff Under the Private Securities Litigation Reform Act of 1995," Practicing Law Institute (1996); as well as the co-author (or ghostwriter) of a number of other articles on securities law practice and procedure published by the Practicing Law Institute; "The State Court Class Action- A Potpourri of Differences," The Forum, ABA, Vol. XX, No. 4, Summer 1985; and "Proving Damages in Non-Class Securities Cases," presented at the Commercial Law Section of the Association of Trial Lawyers of America, the annual convention, July 1986.

Verdicts/Settlements

  • Citron v. E.I. duPont de Nemours & Co. in Delaware Chancery Court
  • Abzug, et ano. v. Kerkorian, et al, CA 000981, Superior Court, Los Angeles, California
  • Stanley v. Safeskin
  • Bell v. New Horizons Worldwide, Inc.
  • MAZ Partners LP v. Shear (In re PHC, Inc. S'holder Litig.), Nos. 17-1821, 17-1904, 2018 U.S. App. LEXIS 18035, *1, 2018
  • Thurber v. Mattel, Master File No. CV-99-10368-MRP(CWx) (C.D. Cal.) (§10(b) claims) and Dusek v. Mattel, Master File No. CV-99-10864-MRP(CWx) (C.D. Cal.) (§14(a) claims), Wolf Popper was a member of the Executive Committee of Plaintiffs' counsel but was also specifically appointed by the Federal Court to have primary responsibility for the prosecution of the Dusek v. Mattel 14(a) claims. After more than three years of extremely hard-fought litigation in which Ms. Avery handled the day-to-day prosecution of the case, including motions, the production of millions of documents, and the taking or defending of more than 40 depositions, both cases settled for the aggregate sum of $122 million, with $61 million allocated for the Dusek v. Mattel §14(a) claims, believed to be the then largest settlement of a §14(a) case. Upon approving the settlement, the Judge complimented counsel saying that the settlement was an "awfully good result."
  • Bozarth v. Envision Healthcare Corp., 2020 U.S. Dist. LEXIS 117294 (C.D. Cal, June 30, 2020), Ms. Avery co-headed the Wolf Popper team which achieved an extraordinary settlement of virtually a 100% recovery for class members who filed documented claims in this California surprise medical billing class action (Case No. 5:17-cv-1935 FMO (SHKx)). Plaintiffs brought claims on behalf of patients who went to emergency rooms at hospitals that were in-network to their insurance plans, only to find out later when they received large bills that the ER physicians were out-of-network to their insurance. Plaintiffs alleged that defendants violated state statutes and the common law. The settlement provides for refunds of payments over the “allowed amounts” indicated by their insurance companies or write-offs of such bills if they were not paid. The settlement also provides for nonmonetary relief in the form of disclosure requests made by defendants to the dozens of California hospitals at which defendants provide ER physicians. In an order entered on June 30, 2020, the Court found that the settlement “affords class members immediate and potentially significant monetary benefits in the face of various defenses to plaintiffs’ claims,” that the “[c]lass recovery is potentially 100%,” and that “the relief provided to the class is more than adequate.”, 2020
  • Martinek v. AmTrust Fin. Servs., 2020 U.S. Dist. LEXIS 146542 (S.D.N.Y. Aug. 14, 2020), judge denied the motion to dismiss this securities fraud class action complaint which Ms. Avery drafted on behalf of preferred stockholders of AmTrust Financial Services, Inc., a large insurance company., 2020
  • As Counsel for Plaintiff in a case under the Truth in Lending Act's (“TILA”) Regulation Z, Ms. Avery was appointed lead counsel and obtained a precedent-setting Opinion certifying the case to proceed as a class action both for damages and declaratory relief under Fed. R. Civ. P. 23(b)(3) as well as 23(b)(2), respectively. See McLaughlin v. Wells Fargo Bank, N.A., 2016 U.S. Dist. LEXIS 81358 (N.D. Cal. June 22, 2016)., 2016
  • Federal Court granted preliminary approval of a class action settlement in Bozarth v. Envision Healthcare Corp., Case No. 5:17-cv-1935 (C.D. Cal. 2019) on December 30, 2019. The case involved what is referred to in the public press as "surprise billing" or "balance billing" in which a patient goes to an in-network emergency room, but is seen by a physician who is out-of-network. Plaintiffs allege that Defendants provided insufficient disclosures regarding these out-of-network ER doctors at in-network hospitals and then charged excessive rates for services, allegedly in violation of California's Unfair Competition Law and California's Consumers Legal Remedies Act, and the common law. The settlement (subject to final approval by the Court, which will likely be scheduled for mid-year 2020) provides that ER patients who file valid claims can receive full refunds or write-offs of amounts in excess of what the patients' insurance companies deem the "allowable charge."  The settlement additionally provides a mechanism for certain disclosures. (Patients would still be liable for their individual deductibles and co-pays if any.) In short, claimants who file valid claims can be provided 100% relief for the claims alleged. Obviously, there is no guarantee of similar recovery in other cases., 2019
  • As Counsel for Plaintiff, Ms. Avery obtained a precedent setting Order under the Truth in Lending Act’s (“TILA”) Regulation Z.  The Court in the Northern District of California, in denying the motion to dismiss of Wells Fargo Bank, held that the bank is required under TILA to indicate the amount of property insurance proceeds held by the bank on the plaintiff customer’s payoff statement.  The Court noted that “[n]o decision from our court of appeals has ever addressed the issue of whether TILA compels lenders to include ‘potential ‘ credits in payoff statements.”  In holding for the plaintiff, the Court found, “[a]s a matter of law, the bank is wrong on this one.”  McLaughlin v. Wells Fargo Bank, NA., No. C 15-02904 WHA, Order that TILA Required Insurance Proceeds to be Reflected in Payoff Statement (N.D. Cal. Oct. 29, 2015)., 2015
  • Secured reversal of the grant of summary judgment to defendants in securities class action, as well as order from the Ninth Circuit directing the District Court to grant class certification of a class of purchasers of common stock as requested by Plaintiff in Huberman v. Tag-It Pacific, Inc., 2009 U.S. App. Lexis 2780 (9th Cir. Jan. 16, 2009). Subsequent settlement approved by the Court in, 2009
  • Retirement Plan for General Employees of the City of North Miami Beach, et al. v. The McGraw-Hill Companies, Inc.,120 A.D.3d 1052,992 N.Y.S.2d 220 (N.Y App. Div. 1st Dept. 2014), as a counsel for appellant shareholders, helped to successfully reverse the dismissal of a request under Business Corporation Law §624 and the common law for inspection of the defendant corporation’s books and records in connection with a claim that defendant failed to properly oversee wrongdoing at the Company’s wholly-owned subsidiary Standard & Poor’s Financial Services LLC (“S&P”)., 2014
  • As Co-Lead Counsel for Plaintiffs, litigated the acquisition of Yongye International, Inc. on behalf of its public shareholders, securing not only part of an increase in the acquisition price but an additional settlement fund in the amount of $6 million (in addition to helping cause an increase in the acquisition price), as well as substantial additional public disclosures in conjunction with the deal. According to Cornerstone Research, fewer than 8% of such cases result in settlement funds. The Court in Nevada approved the proposed settlement at a hearing held on March 3, 2016.  See In re Yongye International, Inc. Shareholder Litigation, Consolidated Case No. A-12-670468-B (Eighth Judicial District Court, Clark County, NV)., 2016
  • On March 15, 2017, the Court in the McLaughlin v. Wells Fargo Bank, N.A. litigation described below granted final approval of a settlement providing Damages Class members with 88% of the maximum available monetary recovery under the Truth in Lending Act ("TILA"), as well as requiring Wells Fargo to alter its mortgage payoff statement practices to comply with TILA. Damages Class members are anticipated to each receive approximately $2,500 per account., 2017
  • The amount to be paid to each Damages Class Member in the McLaughlin v. Wells Fargo Bank, NA., No. C 15-02904 WHA case described below ended up being just over $2,580, exceeding estimates of the amounts that would be paid., 2017
  • Ms. Avery was a member of the plaintiff’s trial team in In re PHC, Inc. Shareholder Litigation, C.A. No. 11-11049-PBS. Following a two-week jury trial in federal court in Boston, in a post-trial decision dated July 13, 2017, Chief Judge Patti Saris ordered the PHC Chief Executive Officer to disgorge $2,964,396 plus interest, representing his ill-gotten gains from the challenged merger. Chief Judge Patti Saris complimented counsel for their skill and professionalism at the end of the trial, stating: "You all [ ] did a great job trying this case. You don’t often see commercial litigation actually go to trial so [this is] a great example not only it being litigated but also the skills but also just this – I’ve had some civil cases which did not go well for the civil bar in terms of being gentlemen and being civic and acting appropriately and you men and women did just that[.]  [Y]ou were very civil throughout this entire proceeding and I thank the folks in [your office] for so much support that they’ve given along the way because I know it’s a big case with a lot of paper... And someone should study the case in terms of how attorneys should treat one another, and I appreciate that….", 2017
  • Co-Lead Counsel for Plaintiff shareholders -- secured an injunction against $3.1 billion acquisition of Atheros Communications, Inc. by Qualcomm Incorporated pending further disclosures of material information to shareholders. See In re Atheros Communications, Inc. Shareholder Litig., 2011 Del. Ch. LEXIS 36 (2011). Attorneys fees awarded to Plaintiffs' Co-Lead Counsel on Feb. 6, 2012., 2011
  • In re Digital Domain Media Group Securities Litigation,Case No. 12-14333-CIV-Martinez-Lynch - as court-appointed Co-Lead Counsel for the plaintiffs, reached a multi-million dollar proposed settlement, subject to court approval in the Bankruptcy Court and the U.S. District Court, of this securities class action. The amount of the settlement is currently not in the public domain., 2015
  • In another novel ruling under the Truth in Lending Act ("TILA")/Regulation Z in which Ms. Avery represents the plaintiff, Jamison v. Bank of America, N.A., No. 2:16-cv-00422-KJM-AC, 2016 WL 3653456 (E.D. Ca., July 7, 2016), the Court in the Eastern District of California found the reasoning of the McLaughlin case prosecuted by Ms. Avery and described below "to be persuasive and consistent with TILA's remedial purpose... As a result, an 'accurate' payoff statement should have disclosed the [insurance] proceeds." The court also rejected the defendant's motion to dismiss the plaintiff's claims under the California Unfair Competition Law. Plaintiff has filed an amended complaint in the action., 2016
  • On April 12, 2017, the United States District Court for the Southern District of Florida granted final approval to the $5.5 million settlement in In re Digital Domain Media Group Securities Litigation,Case No. 12-14333-CIV-Martinez-Lynch. Ms. Avery served as Co-Lead Counsel for the plaintiffs in this federal securities action. In all, nine actions were filed on behalf of different types of investors and creditors, and as part of a massive effort the parties in all the litigations, including the bankruptcy proceedings, were in mediation for over a year to globally resolve all claims. The mediator who oversaw the global resolution of this complex collection of cases described the mediation as "hard-fought," "comprehensive," and "resulted in an excellent recovery for the Class and produced a fair and equitable settlement for those involved." He further complimented Plaintiffs' Co-Lead Counsel, stating that they "conducted themselves in good faith and...with commendable diligence [and] attained an excellent recovery for the Class, particularly given the complexities and uncertainties present in this case and the limited resources from which to pay an award." (ECF Dkt. 112-6, at 3-4.), 2017
  • Secured $29.4 million (plus costs of notice) settlement in options backdating case involving Quest Software, Inc, approved by the Court in the Central District of California in April 2010. Obtained following decisions: Middlesex Retirement System v. Quest Software, Inc., 527 F.Supp.2d 1164 (C.D. Cal. 2007); and Middlesex Retirement System v. Quest Software, Inc., CV 06-6863 DOC (RNBx), Amended Order (C.D. Cal. July 10, 2008) (decisions primarily denying defendants’ motions to dismiss in options backdating case); Middlesex Retirement System v. Quest Software, Inc., Order, CV 06-6863-DOC (RNBx) (C.D. Cal. Jul. 8, 2009), Order (C.D. Cal. Sept. 18, 2009) (order granting Plaintiff’s motion to compel); and Order, CV 06-6863-DOC (RNBx) (C.D. Cal. Sept. 8, 2009) (Granting Lead Plaintiff’s Motion for Class Certification). After extensive discovery, the Court preliminarily approved the settlement, stating counsel “really have the court’s profound congratulations and compliments.”
  • In re PHC, Inc. Shareholder Litigation, 762 F.3d 138 (1st Cir. 2014), co-authored brief for successful plaintiffs-appellants in stockholders’ class action suit challenging the fairness of a corporate merger. District Court had precipitately granted summary judgment. First Circuit held, “[a]fter a thorough and careful review of the entire record, we find that plaintiffs should have been afforded the opportunity to conduct additional discovery,” and remanded the case., 2014

Honors/Awards

  • , Martindale-Hubbell
  • New York Metro Edition, Securities Litigation, 2014 - 2020, Super Lawyers

Bar/Professional Activity

  • U.S. District Courts for the Southern and Eastern Districts of New York; Northern District of Texas; and Central District of Illinois
  • U.S. Courts of Appeals for the Eleventh Circuit
  • U.S. Courts of Appeals for the Fifth Circuit
  • U.S. Courts of Appeals for the Ninth Circuit
  • U.S. Courts of Appeals for the Eighth Circuit
  • U.S. Courts of Appeals for the Seventh Circuit
  • United States Supreme Court
  • U.S. Courts of Appeals for the Fourth Circuit
  • U.S. Courts of Appeals for the Third Circuit
  • U.S. Courts of Appeals for the Second Circuit
  • New York
  • Member, American Bar Association (and several sections) - Member since 1977; Member, New York County Lawyers' Association - Member since 1977

Educational Background

  • New York University, B.A., 1973
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Office Location for Patricia I. Avery

845 3rd Avenue
12th Floor
New York, NY 10022-6601

Phone: 212-451-9619

Fax: 212-486-2093

Last Updated: 3/31/2021

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