Robert A. Schwinger

Partner
Norton Rose Fulbright US LLP

New York
United States
T:+1 212 408 5364
New York
United States
T:+1 212 408 5364
Robert A. Schwinger

Robert A. Schwinger

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Biography

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. He focuses his practice on complex, high stakes business disputes, and has successfully represented both domestic and international clients in matters involving media and technology, financial fraud, private civil antitrust, securities, and intellectual property, including copyright, trademark and patent litigation. He also advises clients on FinTech liability and risk issues and authors the "Blockchain Law" column for the New York Law Journal.

Professional experience

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JD, member, Annual Survey of American Law, New York University School of Law, 1984
AB, cum laude, Princeton University, 1981

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.

  • New York State Bar
  • 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).
  • Conspicuous Service Award, New York County Lawyers Association, January 13, 2021
  • Legal Elite Litigation List, Avenue Magazine, Manhattan Media LLC, 2017
  • New York Metro Super Lawyer, Business Litigation, Antitrust Litigation, Securities Litigation, Thomson Reuters, 2006, 2008 - 2020, 2022 - 2024
  • "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
  • "Litigating in and about the metaverse", Annual Conference of the International Bar Association, Paris, November 1, 2023
  • "Asset Tokenization and Blockchain", Podcast, New York City Bar Association, October 12, 2023
  •  "10 crucial steps for revisiting risk assessments", Global GRC, Data Privacy & Cyber Security ConfEx, New York, May 31, 2023 
  • "Criptoativos, Blockchain e Tecnologias Descentralizadas: Tendências Regulatórias Emergentes", Norton Rose Fulbright-Machado Meyer joint program, São Paulo, Brazil, May 10, 2023  
  • "Crypto - La Era de la Regulación",  Norton Rose Fulbright-Bergstein Abogados joint program, Montevideo, Uruguay, May 8, 2023
  • "What is a Security Token and Why it Matters," New York City Bar Association "Blockchain Institute 2022", November 7, 2022.
  • "The Future of the Law Firm Workplace", Legal Week 2022 on "Addressing the Changing Legal Landscape", New York, March 10, 2022
  • "Cryptocurrency disputes: multi-jurisdictional lines and global reach," Podcast, Norton Rose Fulbright Disputed, January 26, 2022
  • "Managing Regulatory and Litigation Risks in DeFi," DeFi Academy Webinar, Norton Rose Fulbright, December 07, 2021
  • "Digital Assets, Smart Contracts and Their Impact on Commercial and Contract Law", New York State Judicial Institute, Fall 2021
  • "Third party funding in litigation - more than just money", International Bar Association Annual Litigation Forum on "New challenges in multi-jurisdictional litigation", virtual conference, May 18, 2021
  • "FinTech litigation update," Webinar, Norton Rose Fulbright, August 31, 2020
  • "US legal update for European businesses: Blockchain litigation," Webinar, Norton Rose Fulbright, October 3, 2019
  • "Mobile Payments, wallets and fintech: your phone as your new bank", Annual Conference of the International Bar Association, Seoul, September 24, 2019
  • "Cryptocurrency litigation", International Bar Association Annual Litigation Forum on "Disruption in litigation — new types of disputes in a new world order", Berlin, May 10, 2019 
  • "Smart Contracts and Blockchain:  Risks, Potential Liability and Dispute Resolution", guest lecturer at Seton Hall Law School, January 9, 2019 
  • "Smart Contracts and Blockchain: Where Will Disputes Arise and How Should They Be Resolved?", International Law Weekend 2018, Fordham Law School, October 20, 2018
  • "Post-closing claims:  When the deal goes wrong", Annual Conference of the International Bar Association, Rome, October 9, 2018
  • "Legal Ethics in Social Media," ACC (Association of Corporate Counsel) Litigation Committee, online, March 27, 2018 
  • "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
  • 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
  • Member, New York City Bar Association, Task Force on Digital Technologies, co-chair of Subcommittee on Distributed Ledger Technology and Blockchain 
  • Member, Board of Directors, American Foreign Law Association
  • Member, Law360's Fintech Editorial Advisory Board, 2022-2023
  • Member, Legal Working Group, Wall Street Blockchain Alliance