Robert A. Schwinger

Partner

Practice Description

Representative Matters

• Mr. Schwinger defended lawsuits in the federal district court in Washington, D.C. against a private security contractor operating in Iraq involving the Alien Tort Statute and other claims 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, Mr. Schwinger represented ESPN in a highly publicized breach of contract litigation that ESPN brought in federal court in the Southern District of New York against Major League Baseball, relating to ESPN’s telecasting rights for September telecasts of "Sunday Night Football” and "Sunday Night Baseball” games on the ESPN and ESPN2 services.
• In Brown & Williamson Tobacco Corp. v. Jeffrey Wigand (which involved a well-known former tobacco company R&D executive who gave interviews to "60 Minutes”—events which inspired the motion picture The Insider, starring Russell Crowe and Al Pacino), Mr. Schwinger litigated free-press challenges raised against subpoenas that Brown & Williamson issued to CBS in connection with its litigation against the former executive for breach of his confidentiality and non-disparagement agreements. 
• In the bankruptcy proceedings for Tribune Company, one of the largest bankruptcy cases now pending in the United States, Mr. Schwinger worked on the Creditors’ Committee investigation of certain prepetition financing transactions and its assertion of claims in connection therewith, and is currently involved in the hearing to secure court approval for a plan of reorganization supported by the Creditors’ Committee that includes a litigation trust.
• In In re HealthSouth Corporation Insurance Litigation, Mr. Schwinger represented former HealthSouth CEO Richard M. Scrushy against attempts by various insurers to rescind or deny D&O insurance coverage to Mr. Scrushy in connection with a variety of civil and criminal litigations over highly publicized accounting issues at HealthSouth. Mr. Schwinger obtained an important summary judgment ruling limiting the insurers’ ability to rescind Mr. Scrushy’s coverage. 
• In another case presenting allegations of massive financial fraud, the bankruptcy proceedings for Allou Distributors, Inc., Mr. Schwinger defended a bankruptcy trustee’s $200 million accounting malpractice claim against former auditor Arthur Andersen LLP. 
• Mr. Schwinger has handled a number of litigations seeking to enforce and bar challenges to the payment of life insurance policies that have been the subject of life settlement transactions, 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)).  
• Mr. Schwinger’s practice includes a variety of antitrust matters. In Moore Corp. Ltd. v. Wallace Computer Services, Inc., where he defended a hostile acquirer in the business-forms industry against a target company’s defensive attempt in Delaware federal court to enjoin the proposed takeover on antitrust grounds, the court rejected both the target’s substantive antitrust claims and its very standing even to raise them. Mr. Schwinger obtained a dismissal for Jim Beam Brands of antitrust and RICO claims brought against it in federal court in New York arising from a terminated New York liquor distributorship.  Mr. Schwinger also 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.
• Among the securities litigations Mr. Schwinger has handled is 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, where Mr. Schwinger represented issuer Jazztel plc, a Spanish telecommunications company. Mr. Schwinger also was involved 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.
• In the area of international financial institutions, Mr. Schwinger defended a major Russian bank in Indosuez International Finance B.V. v. National Reserve Bank, a dispute seeking damages of more than $100 million in connection with claimed non-deliverable forward currency exchange contracts (brought in the aftermath of the August 1998 Russian banking moratorium and the ensuing Russian financial crisis), including defeating the plaintiff’s attempts to enjoin related litigation brought by the Russian bank in the courts of Moscow. Mr. Schwinger also 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.
• In other international litigation, Mr. Schwinger 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. Mr. Schwinger 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.
• 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, Mr. Schwinger was part of a team of counsel that 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.

Some of the significant reported decisions in cases in which Mr. Schwinger has been involved in recent years include:

• 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).

Honors

Activities and Affiliations

Publications

Speeches and Events

Mr. Schwinger has made multiple appearances on the BBC World Business Report and the Fox television network to discuss antitrust, RICO and securities issues.