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Robert A. Schwinger

Partner

Robert A. Schwinger

New York

T:+1 212 408 5364

Bob Schwinger is a partner in the Commercial Litigation group at Norton Rose Fulbright. He also serves as assistant general counsel to the firm. Bob is an experienced litigator who has taken over twenty cases to trial, including eleven trials in federal courts, eight in New York state courts and two arbitrations. Bob focuses his practice on complex, high stakes business disputes, and has successfully represented both domestic and international clients in matters involving media and technology, private civil antitrust, financial fraud, securities and intellectual property, including copyright and trademark litigation, trade secrets and theft of ideas.

 

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  • Education
    • 1984 - J.D., member, Annual Survey of American Law, New York University School of Law
    • 1981 - A.B., cum laude, Princeton University

    In addition to being admitted to practice in the State of New York, Bob is a member of the bars of the United States Courts of Appeals for the Second, Third, Fourth, Fifth, Seventh, Ninth, District of Columbia and Federal Circuits, the United States Supreme Court, the United States District Courts for the Southern, Eastern, Northern and Western Districts of New York, and for the District of Columbia, the Northern District of Illinois, and the Eastern District of Michigan, and the United States Court of International Trade.

  • Representative experience
    • Defended federal lawsuits under the Alien Tort Statute against a private security contractor operating in Iraq arising from an alleged incident in Baghdad which resulted in the deaths of two Iraqis. 
    • In ESPN, Inc. v. Office of the Commissioner of Baseball, represented ESPN in a highly publicized federal court litigation that it brought against Major League Baseball, over ESPN’s telecasting rights for September telecasts of “Sunday Night Football” and “Sunday Night Baseball” games on the ESPN and ESPN2 services. More recently, he represented Mid-Atlantic Sports Network (MASN) in connection with telecasting rights disputes in arbitration and litigation against the Washington Nationals and Major League Baseball relating to the Baltimore Orioles. 
    • In Brown & Williamson Tobacco Corp. v. Jeffrey Wigand (involving a former tobacco R&D executive who gave interviews to “60 Minutes”—events which inspired the motion picture The Insider, starring Russell Crowe and Al Pacino), litigated free-press challenges raised against tobacco company’s subpoenas to CBS.

    Antitrust

    • Obtained pre-answer dismissal of federal conspiracy and monopolization claims involving providers of electronic data interchange (EDI) services, and argued against and prevailed in the Fourth Circuit appeal from that ruling.
    • Defended monopolization and attempted monopolization claims and Noerr-Pennington issues involving cable television and telephone companies in Puerto Rico.
    • In Moore Corp. Ltd. v. Wallace Computer Services, Inc., successfully defended a hostile acquirer against a target company’s defensive attempt to enjoin the proposed takeover on antitrust grounds, with the court rejecting both the target’s substantive antitrust claims and its very standing even to raise them.
    • Obtained dismissal for Jim Beam Brands of antitrust and RICO claims brought against it arising from a terminated New York liquor distributorship.
    • Represented ORBCOMM, a satellite data communications company, in a federal antitrust litigation and a commercial arbitration against a manufacturer of the modems used for communication with ORBCOMM’s satellites. 
       

    Intellectual property

    • Represented a major Japanese hair care products manufacturer in Sunstar Inc. v. Alberto-Culver Company, a litigation involving issues of both U.S. law and Japanese trademark law with respect to the Japanese trademarks for “VO5” hair care products that included a three-week jury trial in federal court in Chicago and a Seventh Circuit appellate ruling vacating the trial judgment and upholding Sunstar’s trademark rights as a matter of law under its contract.
    • Represented Avid Technology, Inc. in patent infringement litigation and trial in Delaware concerning digital shared storage products for the media industry.
    • Represented a financial software developer in copyright “look and feel” litigation in New York over graphical user interfaces.
       

    Financial frauds

    • In In re HealthSouth Corporation Insurance Litigation, represented former HealthSouth CEO Richard M. Scrushy against attempts by various insurers to rescind or deny his D&O insurance coverage in connection with various civil and criminal litigations over highly publicized accounting issues at HealthSouth.
    • Defended a bankruptcy trustee’s $200 million accounting malpractice claim against former auditor Arthur Andersen LLP in the bankruptcy proceedings arising from the massive financial fraud at Allou Distributors, Inc.
       

    Securities

    • Represented issuer Jazztel plc, a Spanish telecommunications company, in In re Initial Public Offering Securities Litigation, a massive consolidated class action proceeding involving approximately 1000 lawsuits dealing with allegations of securities fraud against approximately 300 issuers and 55 investment banks in connection with numerous IPOs in the late 1990s.
    • Represented the plaintiff in Hallwood Realty Partners, L.P. v. Gotham Partners, L.P., a case of first impression that addressed the ability of a securities issuer to obtain money damages against an alleged undisclosed takeover group under Section 13(d) of the Securities Exchange Act of 1934.
       

    International

    • Represented the Republic of the Congo in litigation in Washington, D.C., to block enforcement in the United States of a $770 million ICC arbitration award.
    • Defended a major Russian bank in Indosuez International Finance B.V. v. National Reserve Bank, against claims for more than $100 million in connection with claimed non-deliverable forward currency exchange contracts, including defeating the plaintiff’s attempts to enjoin related litigation brought by the Russian bank in the courts of Moscow.
    • Represented the Agricultural Bank of China in litigation concerning more than $10 million that was fraudulently obtained under letters of credit issued by the bank and then laundered through a series of international money transfers; the bank recovered 96.5% of the funds in just five months of litigation.
    • Defended Sun International Hotels Ltd. v. Kersaf Investments Ltd., an international contract and business tort dispute between companies in the hotel, resort and casino industry, in which the South African defendant successfully obtained dismissal of the New York litigation on grounds of inconvenient forum in favor of litigation before the High Court of Justice in England.
       

    Bankruptcy matters

    • Represented a major municipal bond insurer against attempts to impair water and sewer bonds in the Chapter 9 municipal bankruptcy proceedings for the City of Detroit.
    • Was a member of the Creditors’ Committee investigation team in the bankruptcy proceedings for Tribune Company.
    • Served on the investigatory team for the court-appointed examiner in the bankruptcy proceedings for Residential Capital, LLC (ResCap).
       

    Other

    • In Tepperman v. MacAndrews & Forbes Group, Inc., a case that received national attention for the focus it put on the issue of balancing work and family obligations at the highest levels of corporate America, defended MacAndrews & Forbes Group in a highly publicized breach of employment contract lawsuit brought by a terminated senior executive who had been charged with deteriorating job performance over a period of years during which his wife was stricken with Alzheimer’s disease.
    • Handled numerous litigations involving the life settlement industry, including establishing the right of policyholders in such situations to seek relief against recalcitrant insurers under New York’s deceptive business practices statute (Phoenix Life Ins. Co. v. Irwin Levinson Trust II, 2009 WL 497318 (Sup Ct. N.Y. Co. Feb. 19, 2009); Lincoln Life & Annuity Co. v. Bernstein, 2009 WL 1912468 (Sup. Ct. Onondaga Co. June 29, 2009)).
       

    Selected reported decisions

    • Loren Data Corp. v. GXS, Inc., 501 Fed. Appx. 275, 2012-2 Trade Cas. (CCH) ¶ 78,203 (4th Cir. 2012), cert. denied, 133 S. Ct. 2835 (2013) (affirming trial court’s dismissal of antitrust claims for conspiracy, monopolization and attempted monopolization brought by one electronic data interchange (EDI) provider against another under Sections 1 and 2 of the Sherman Act).
    • Sunstar Inc. v. Alberto-Culver Co., 586 F.3d 487 (7th Cir. 2009) (vacating trial verdict and holding that Japanese consumer products manufacturer was entitled as a matter of law to modify logo on “VO5” hair care products sold in Japan pursuant to Japanese senyo-shiyoken trademark rights embodied in U.S. trademark sale/trust/licensing arrangement).
    • In re HealthSouth Corp. Ins. Litig., 308 F. Supp. 2d 1253 (N.D. Ala. 2004) (obtaining summary judgment that representations and severability clauses in D&O insurance policy precluded rescission of the policy as to former CEO without proof of knowing misrepresentations specifically made by former CEO in a document referenced in the policy’s representations clause).
    • Potomac Electric Power Corp. v. Panda-Brandywine, L.P., 99 F. Supp. 2d 681 (D. Md. 2000) (dismissing challenge to electric power facility’s “qualifying facility” status under federal law as jurisdictionally improper under the statutes controlling the federal energy regulatory structure).
    • ESPN, Inc. v. Office of the Commissioner of Baseball, 76 F. Supp. 2d 416 (S.D.N.Y. 1999) (granting motion to restrict defendant to only nominal damages on its counterclaims).
    • Indosuez International Finance B.V. v. National Reserve Bank, 263 A.D.2d 384, 693 N.Y.S.2d 33 (1st Dep’t 1999) (upholding denial of plaintiff’s request for preliminary injunction against defendant’s prosecution of a lawsuit against plaintiff it had previously filed in a Moscow court).
    • Moore Corp. v. Wallace Computer Services, Inc., 907 F. Supp. 1545 (D. Del. 1995) (rejecting target’s standing to raise antitrust challenge against tender offeror, and rejecting antitrust claim on the merits as well), and 898 F. Supp. 1089 (D. Del. 1995) (rejecting attempt by target to dismiss tender offeror’s lawsuit against target’s board as unripe).

     

  • Admissions
    • New York State Bar License
  • Rankings and recognitions
    • Legal Elite Litigation List, Avenue Magazine, Manhattan Media LLC, 2017
    • New York Metro Super Lawyers, Business Litigation, Antitrust Litigation, Securities Litigation, Thomson Reuters, 2006, 2008 - 2017
    • "Future Star", Benchmark Litigation, 2014-2016
    • Legal 500 US, Nationwide: Commercial Litigation, The Legal 500, 2015
    • Burton Award for Legal Achievement, The Burton Awards, 2001
    • Martindale-Hubbell "AV" rating
  • Publications
    • "FTC Revises Hart-Scott-Rodino Thresholds for 2017," Client Alert, January 24, 2017
    • "New York’s highest court rejects extension of ‘common interest privilege’ to transactional contexts," International Litigation News, September 2016
    • "Avoiding uncertainty in arbitration clauses: a cautionary tale," IBA Arbitration News, August 2016
    • "'Reasonableness' Constraints on the Exercise of Personal Jurisdiction by US Courts," International Litigation News, April 2016
    • "FTC Revises Hart-Scott-Rodino Thresholds for 2016," Client Alert, January 28, 2016
    • "FTC Held to Have Authority to Regulate Cybersecurity Practices under Section 5 of the FTC Act," Client Alert (Republished in Pratt's Privacy and Cybersecurity Law Report Vol. 2 No. 1), September 24, 2015
    • "Are the US courts moving towards greater consensus in the application of the 'common interest privilege '?," International Litigation News, April 2015
    • "Supreme Court Limits—But Does Not Foreclose—Section 11 Liability for Statements of Opinion, Leaving Investors With a Steep Climb," Client Alert, March 30, 2015
    • "FTC Revises Hart-Scott-Rodino Thresholds for 2015," Client Alert, January 21, 2015
    • "Limits Set on New York Courts’ Reach Over Predominantly International Transactions That Pass Through New York Banks," Client Alert, April 22, 2014
    • "FTC Revises Hart-Scott-Rodino Thresholds for 2014," Client Alert, February 10, 2014
    • "New York Appeals Court Holds Remedy for Bad Faith in Foreclosure Negotiations Unconstitutional," Financial Services Litigation NewsWire, July 2013
    • "Supreme Court Holds that the Use of Reverse Payment” Settlement Agreements to Resolve Patent Infringement Litigation are Not Exempt from Antitrust Scrutiny," Client Alert, June 26, 2013
    • "Supreme Court’s Second Class Arbitration Ruling of the Term Rejects Challenge to Contractual Prohibition Against Class Arbitration, Even Where the Prohibition is Claimed to Prevent Effective Vindication of Federal Statutory Rights," Client Alert, June 24, 2013
    • "Supreme Court’s Deference to Agreements by Parties to Arbitrate Proves a Double-Edged Sword, as Court Refuses to Disturb Arbitrator’s Decision That Parties’ Contract Authorized Class Arbitration," Client Alert, June 17, 2013
    • "Free Speech and Credit Ratings: The First Amendment Defence," International Litigation News, April 2013
    • "Keeping Current: Supreme Court Holds Proof of Materiality Not Required to Certify a Securities Fraud Class Action," Business Law Today, April 2013
    • "Supreme Court Holds Proof of Materiality Not Required to Certify a Securities Fraud Class Action," Client Alert, March 11, 2013
    • "FTC Revises Hart-Scott-Rodino Thresholds for 2013," Client Alert, January 30, 2013
    • "First Circuit Finds Bank's Security Procedures to Prevent Internet Banking Fraud 'Commercially Unreasonable'," Financial Services Litigation NewsWire, October 2012
    • "New York Lawsuit Over Bank’s Actions in Singapore Is Dismissed," The Banking Law Journal, September 2012
    • "New York Lawsuit Over Bank’s Actions in Singapore Is Dismissed," Financial Services Litigation NewsWire, June 2012
    • "US Supreme Court Rejects Expansive Approaches to Exercising Personal Jurisdiction Over Foreign Companies Based on a ‘Stream of Commerce’ Theory," International Litigation News, May 2012
    • "New York State Bar Report on New York Law in International Matters," IBA Arbitration News, April 2012
    • "First Amendment Protection Denied to Credit Ratings Privately Disseminated," Financial Services Litigation NewsWire, March 2012
    • "FTC Revises Hart-Scott-Rodino Thresholds For 2012," Client Alert, January 26, 2012
    • "Release of Lender in Post-Default Forbearance Agreement Is Valid as Not Procured by Economic Duress," Financial Services Litigation NewsWire, December 2011
    • "Corporate Liability Under Alien Tort Statute: Don’t Elevate Form Over Substance," The National Law Journal, September 26, 2011
    • "Bank Potentially Liable for Terrorist Attacks," Financial Services Litigation NewsWire, September 2011
    • "Report Identifies Numerous Advantages of New York Law and New York Dispute Resolution for International Transactions," Client Alert, July 26, 2011
    • "FTC and DOJ's Antitrust Division Change Initial Reporting Requirements for M&A Transactions under the Hart-Scott-Rodino Act," Client Alert, July 25, 2011
    • "Supreme Court Rejects Expansive Approaches to Exercising Personal Jurisdiction Over Out-of-State Companies Based on Stream of Commerce Theory," Client Alert, June 30, 2011
    • "Supreme Court Rejects Securities Fraud Liability For Investment Advisor Who Participated In Drafting But Did Not Itself Issue Allegedly Misleading Prospectuses," Client Alert, June 23, 2011
    • "Supreme Court Holds Proof of 'Loss Causation' Not Required to Obtain Class Certification of Securities Fraud Claim," Client Alert, June 20, 2011
    • "Pennsylvania District Court Taxes E-Discovery Costs Against Losing Party," Client Alert, May 25, 2011
    • "FTC Revises Hart Scott Rodino Thresholds For 2011," Client Alert, January 25, 2011
    • "Ninth Circuit Orders Enforcement of Grand Jury Subpoena for Foreign-Origin Documents Produced Pursuant to Protective Order in Civil Trial between Private Parties," Client Alert, December 31, 2010
    • "NY Court: Investors Cannot Pursue Fraud Claims Against Accounting Firm For Purely Derivative Damages," VCExperts, October 29, 2010
    • "New York’s Top Court Endorses Broad Scope For In Pari Delicto Defense When Outside Professionals Are Sued In Connection With Corporate Frauds," Client Alert, October 25, 2010
    • "Fraud Created The Market' Securities Fraud Theory Rejected By The Third Circuit, Widening Circuit Split," Client Alert, August 25, 2010
    • "Law vs. Equity: Second and Third Circuits Diverge on 'In Pari Delicto'," New York Law Journal, July 27, 2010
    • "New York’s Top Court Affirms That Hedge Fund Investors Cannot Pursue Fraud Claims Against Accounting Firm For Purely Derivative Damages," Client Alert, July 13, 2010
    • "Supreme Court Limits Federal Securities Fraud Claims to Securities Traded, Purchased or Sold Domestically," Client Alert, July 8, 2010
    • "2nd Circuit Ruling Keeps 'Stoneridge' Door Shut," Law.com, May 24, 2009
    • "No Securities Fraud Liability for Persons Who Merely Participate in Drafting False or Misleading Statements if Those Statements Are Not Attributed to Them," Client Alert, May 6, 2010
    • "SEC’s March Toward Adoption of Global Accounting Standards Raises Potential Litigation Challenges for US. Issuers and their Auditors," Client Alert, March 31, 2010
    • "En Banc First Circuit Rejects SEC’s Attempt to Broaden Scope of Primary Liability for Securities Fraud Under Implied Representations Theory," Client Alert, March 26, 2010
    • "E-Discovery Failings That Amount to Gross Negligence," Law.com, February 22, 2010
    • "Harsh Sanctions Ruling Signals Federal Courts' Decreasing Tolerance for Insufficient E-Discovery Procedures," Client Alert, February 2, 2010
    • "Terrorism Ruling May Help Corporate Defendants Win Early Dismissals," law.com, June 3, 2009
    • "Supreme Court Decision on Terrorism Suspect’s Civil Rights Claims May Also Help Commercial Defendants Win Early Dismissals," Client Alert, May 28, 2009
    • "How Rule 502 Affects Lawyers and E-Discovery," law.com, October 08, 2008
    • "New Rules Limit Circumstances Under Which Inadvertent Disclosure Waives Attorney-Client Privilege," Client Alert, October 2, 2008
    • "First-Party Reliance Not Required for Mail-Fraud-Based RICO," RICO Law Reporter, September 2008
    • "First-Party Reliance Not Needed for Mail-Fraud RICO," New York Law Journal, August 18, 2008
    • "Is Plaintiff’s Own Reliance Required for Mail Fraud-Based RICO?," RICO Law Reporter, April 2008
    • "Plaintiff's Reliance Needed for Mail Fraud-Based RICO?," New York Law Journal, March 6, 2008
    • Co-author, "Stoneridge: Not The End Of The Road," Securities Law360, Portfolio Media, Inc., January 18, 2008
    • "Will 'Leegin' Pave the Way for Ending Baseball's Antitrust Exemption?," law.com, August 7, 2007
    • Co-author, "US Supreme Court Loosens Antitrust Review Standard for Manufacturer Resale Price Maintenance Practices," Client Alert, July 5, 2007
    • "Tellabs Decision Should Reduce Frivolous Fraud Suits," Securities Law360, July 5, 2007
    • "The Gavel - Commercial Litigation," NewsWire, June 2007
    • "US Supreme Court Clarifies and Tightens the Pleading Requirements for Private Securities Fraud Lawsuits," Client Alert, June 28, 2007
    • "New York Court of Appeals Makes It More Difficult for Accounting Malpractice Plaintiffs to Avoid Statute of Limitations Problems Under Continuous Representation Doctrine," Client Alert, June 14, 2007
    • Co-author, "High Court Ruling May Facilitate Early Dismissals," Competition Law360, June 5, 2007
    • "Supreme Court’s Dismissal of Antitrust Conspiracy Complaint May Ease Path for Early Dismissals of Weak Claims Generally," Client Alert, May 25, 2007
    • "Standards Tighten for Imposing Securities Fraud Liability on Banks and Other 'Secondary Actors,' but Issue Awaits Supreme Court Review," Client Alert, March 28, 2007
    • "Second Circuit Holds That Mere Auditor 'Review' Of Quarterly Financials Will Not Give Rise To Liability Under The Federal Securities Laws," Client Alert, March 14, 2007
    • "Second Circuit Confirms That Auditors Can Have A 'Duty To Correct' Their Own Prior Misstatements Under The Federal Securities Laws," Client Alert, March 6, 2007
    • "Honest Competitors Catch No Break Under RICO," Metropolitan Corporate Counsel, August 2006
    • "Recent Challenges by D&O Insurers to Coverage Fall Short," Securities Litigation and Regulatory Enforcement NewsWire, October 2005
    • "The Return of the RICO Whistleblower?," Metropolitan Corporate Counsel, May 2005
    • "US Sentencing Commission Proposes Amendments to Guidelines on Organization Compliance and Ethics Programs," Client Alert, June 4, 2004
    • "Selecting and Preparing 30(b)(6) Witnesses," Metropolitan Corporate Counsel, September 2003
    • "High Court Suggests No 'Economic Loss' Remedy for Disaster," New York Law Journal, November 2001
    • "When Dismissed Cases Won’t Stay Dead: The Disconcerting Lesson of Semtek v. Lockheed," Metropolitan Corporate Counsel, May 2001
    • Co-author, "Refusal Rights Gamesmanship in Telecasting Contracts -- Part II," Metropolitan Corporate Counsel, January 2001
    • Co-author, "Refusal Rights Gamesmanship in Telecasting Contracts -- Part I," Metropolitan Corporate Counsel, December 2000
    • Co-author, "Employers Still Must Beware State Whistleblower Rules," Andrews Corporate Risk Spectrum, July 2000
    • "Antitrust Dark Side Lurking on Web?," New York Law Journal, June 12, 2000
    • "Supreme Court on Start of RICO Limitations Period," New York Law Journal, April 21, 2000
  • Speaking engagements
    • "Artificial intelligence — How much of you will it replace? How much will it enhance?" International Bar Association Annual Litigation Forum on "Innovation in Litigation — Prepared for 2027," Zurich, May 5, 2017
    • "Legal Ethics in Social Media: Leading Issues in a Changing World," Annual Conference of the Energy Bar Association, Washington, DC, April 4, 2017
    • "Too much information? How many cards do you really need on the table to resolve a dispute?," Annual Conference of the International Bar Association, Vienna, October 5, 2015
    • Multiple appearances on the BBC World Business Report and the Fox television network to discuss antitrust, RICO and securities issues
    • "Protecting Client Information: A Primer on Attorney-Client Privilege and Work Product Doctrine," Bloomberg Law Seminar, New York, NY, April 28, 2010
    • Panel chair, "Let He Whose Executives Were Without Sin Cast the First Stone: Using Management Wrongdoing to Bar Suits by Corporate Plaintiffs and Debtors," New York State Bar Association 2009 Annual Meeting (Commercial & Federal Litigation Section), New York, New York, January 28, 2009
    • Antitrust Panel, "The Corporate Lawyering Conference™," New York, NY, June 12, 2000
    • Antitrust Panel, "The Corporate Lawyering Conference™," New York, NY, May 12, 1999
    • "Best Practices: Real Life Advice, Fourth Annual Conference," American Corporate Counsel Association (ACCA), Greater New York Chapter, June 3-4, 1998
  • Memberships and activities
    • Member, Federal Bar Council
    • Member, International Bar Association (Litigation and Arbitration Committees)
    • Member, New York State Bar Association (Commercial and Federal Litigation and International Sections)
    • Member, New York State Bar Association Task Force on New York Law in International Matters, 2010-2011