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Robert T. Smith

Partner
robert.smith1@kattenlaw.com
Washington, DC Office
p+1.202.625.3616
f+1.202.339.6059
Overview

A leader of the firm's Appellate and Supreme Court Litigation practice, Robert T. Smith works with clients across a variety of industries and practices—from health care to financial services—tackling some of their most difficult and important legal problems, including complex civil and criminal appeals, dispositive motions and trial practice, and governmental investigations and enforcement actions.

Drawing on his time as a federal appellate clerk, Rob has served as the principal author of dozens of filings in federal and state appellate courts, including the US Supreme Court, and he has likewise assisted clients with critical motions practice in federal and state trial courts throughout the country. Rob's written advocacy has covered a wide range of substantive areas, including complex civil litigation, criminal cases, environmental matters, health care fraud and claims under the False Claims Act, and patent and trademark disputes. A generalist in some of these areas, Rob excels at drafting creative and concise arguments that resonate with judges, who are likewise generalists.

In addition, Rob has substantial experience as an oral advocate. He has argued high-stakes appeals before the US Courts of Appeals for the Second, Fifth, Sixth and Federal Circuits.  Rob also has appeared numerous times in federal and state trial courts, where he has successfully argued dispositive motions, in support of bail, and at federal sentencing hearings. In one such case, for example, Rob successfully argued for the dismissal of alleged felony charges against a corporate defendant under the Outer Continental Shelf Lands Act.

Rob also has assisted corporate and individual clients during trial—whether serving on the front lines or behind the scenes as a legal counselor and motions writer. During one such jury trial, a federal criminal case, Rob served as co-chair, delivering the opening statement, cross-examining the government's expert witness and arguing the vast majority of legal motions before the district court judge. As another example, Rob served as a legal consultant to the defense team during a federal criminal trial, during which he wrote the pre-trial motions, developed jury instructions and drafted a motion for judgment of acquittal in real time—as the trial progressed. In both cases, Rob helped lay the foundation for a favorable set of jury instructions and, ultimately, verdicts of acquittal for his clients on all charges.

Beyond his appellate and trial work, Rob regularly assists corporate and individual clients in navigating the difficult and often trying circumstances that surround criminal and civil governmental enforcement actions and investigations, including proceedings under the False Claims Act. Rob has conducted internal investigations, advised clients on potential criminal and civil exposure, managed responses to subpoenas, assisted in making presentations and disclosures to prosecutors about alleged client conduct, and negotiated with prosecutors and enforcement lawyers at the Department of Justice, various US Attorney's Offices, and regulatory agencies.

Rob is a steadfast proponent of pro bono legal representation and a recipient of the firm's Pro Bono Service Award. Through this work, Rob has successfully argued an appeal to the Second Circuit on behalf of a transgender client asserting claims of discrimination; secured a verdict of acquittal on behalf of an elderly, indigent client indicted on federal wire fraud charges; and persuaded the Sixth Circuit to allow an inmate a second chance to challenge his state-court conviction based on claims of actual innocence.

Before joining Katten, Rob served as a law clerk to Chief Judge John M. Walker Jr. on the US Court of Appeals for the Second Circuit and, prior to and during law school, worked as a legislative assistant and legislative correspondent for Representative Rush D. Holt of the US House of Representatives.

Shown below is a selection of Robert’s engagements.

Experience
Appellate
  • Coauthor of brief on behalf of petitioners in an appeal before the US Court of Appeals for the District of Columbia Circuit challenging an administrative finding of securities fraud by the Securities and Exchange Commission.
  • Successful representation of a publicly traded company in an appeal before the US Court of Appeals for the Third Circuit. The company had been pursuing FDA approval to market its signature drug for a new indication. A group of plaintiffs filed a putative class action under the Securities Exchange Act of 1934, alleging that the company misled investors about the prospects of FDA approval. The Third Circuit affirmed the dismissal of the plaintiffs’ complaint.
  • Primary author of an amicus curiae brief on behalf of Apotex, Inc., in litigation before the US Supreme Court that addressed the validity of so-called pay-to-delay settlements between brand- and generic-drug manufacturers. Apotex was unique among generic manufacturers in supporting the position of the Federal Trade Commission, which had determined that such settlements are anticompetitive under the Sherman Act. Apotex provided the Court with a unique perspective on how settling manufacturers can use their agreements to effectively block other generic manufacturers from entering the market. Fed. Trade Comm'n v. Actavis, Inc., 133 S. Ct. 2223 (2013).
  • Successful argument before the US Court of Appeals for the Sixth Circuit, obtaining authorization for client to file a second challenge to a state court conviction through the actual innocence gateway of the Antiterrorism and Effective Death Penalty Act (AEDPA). In re McDonald, 514 F.3d 539 (6th Cir. 2008).
  • Representation of a transgender ironworker in an appeal before the US Court of Appeals for the Second Circuit alleging discrimination and retaliation against his union and two of its officials. In a precedential opinion reinstating the client's lawsuit, the Second Circuit recognized for the first time that allegations of transgender discrimination are sufficient to state a claim for breach of a labor union's duty of fair representation, an implied cause of action under the National Labor Relations Act. The Second Circuit also ordered the US District Court for the Southern District of New York to reconsider the client's claims of discrimination under Title VII of the Civil Rights Act of 1964, holding that the failure to exhaust administrative remedies with the Equal Employment Opportunity Commission did not mandate dismissal, and recognizing that the client's failure to exhaust might be excused on one or more equitable grounds. The Second Circuit lauded Katten's work during the argument and noted in its opinion that the client was "ably represented" on appeal. Fowlkes v. Ironworkers Local 40, 790 F.3d 378 (2d Cir. 2015).
  • Primary author of an amicus curiae brief on behalf of the Texas Oil & Gas Association, the Texas Association of Business and the Texas Association of Manufacturers in litigation before the US Supreme Court over the Environmental Protection Agency's decision to regulate greenhouse gas emissions by stationary sources under Title I of the Clean Air Act. The Supreme Court's decision largely tracked the arguments that were raised in the amicus curiae brief; it held that the EPA lacked the authority to rewrite clear statutory provisions of the Clean Air Act. Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014).
  • Primary draftsman of a petition for a writ of certiorari and a reply brief in a bankruptcy case that was identified by a leading US Supreme Court website as its Petition of the Day. Exide Techs. v. EnerSys Delaware, Inc., 607 F.3d 957 (3d Cir. 2010), cert. denied, 131 S. Ct. 1470 (2011).
  • Chief author of a successful petition for a writ of certiorari and a reply brief, securing from the US Supreme Court vacatur of an adverse judgment that had been entered against the firm's clients in a tax case. Grapevine Imports, Ltd. v. United States, 636 F.3d 1368 (Fed. Cir. 2011), vacated and remanded by 132 S. Ct. 2099 (2012). Also chief author of an amicus curiae brief on behalf of Grapevine Imports in a related case before the Court, challenging the executive's authority to overrule by regulation a prior decision of a court. United States v. Home Concrete & Supply, LLC, 132 S. Ct. 1836 (2012).
  • Principal author of opening and reply briefs on behalf of The Retail Property Trust, a wholly owned subsidiary of Simon Property Group, Inc., in the US Court of Appeals for the Ninth Circuit, arguing that the Labor Management Relations Act (LMRA) does not preempt traditional state-law property claims for trespass and private nuisance asserted against a labor union that was arguably engaged in a secondary boycott at the time. The Ninth Circuit agreed in an important, precedential opinion that overturned an adverse decision by the district court. Retail Property Trust v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938 (9th Cir. 2014).
  • Coauthor of opening and reply briefs on behalf of a publicly traded company in an appeal before the US Court of Appeals for the Ninth Circuit raising the question whether the Securities Litigation Uniform Standards Act divested State courts of concurrent jurisdiction to adjudicated covered class actions arising under the Securities Act of 1933.
Trial/Criminal Defense
  • Representation of a corporate client charged with felony violations of the Outer Continental Shelf Lands Act. Successfully argued a motion to dismiss the felony counts of the indictment on the basis that the federal government had failed to promulgate regulations that imposed liability on contractors for failing to comply with substantive regulations enacted under the Outer Continental Shelf Lands Act. United States v. Wood Group Prod. Servs. Network, Inc., No. 15-cr-197 (E.D. La.), appeal dismissed, No. 16-30561 (5th Cir.).
  • Representation of a high-profile foreign national in an OFAC sanctions matter and successful petition for removal from the Special Designated Nationals and Blocked Persons List by OFAC.
  • Assistance to a publicly held company in negotiating a non-prosecution agreement resolving alleged violations of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030. United States v. Coventry Health Care Inc. (D. Md.).
  • Representation of two major energy companies subject to separate investigations for alleged felony violations of the Clean Air Act. In response to both investigations, worked with colleagues in the Environmental and Workplace Safety practice to develop legal arguments that helped convince the Department of Justice to decline to file criminal charges.
  • Assistance to a financing company in obtaining the dismissal of tort claims seeking to establish a precedent that would preclude such companies from extending second lines of credit to small businesses. The case was discussed in an article by The Wall Street Journal covering small business financing. Small Bus. Fin. Solutions, LLC v. EBF Holdings, LLC, C.A. No. N15C-05-088 (Del. Super. Ct.).
  • Successful defense of a client, as co-chair of a federal criminal trial in the US District for the Eastern District of Virginia, against 10 counts of wire fraud. Representation included delivering the opening statement to the jury, cross-examining the government's expert witness and making an argument that led the district court to adopt a key jury instruction that helped to secure a judgment of acquittal. United States v. Thomas, No. 1:12-cr-386 (E.D. Va.).
  • Successful defense of a corporate client, as member of a trial team, against charges of conspiracy and tampering in violation of the Clean Water Act; assisted with the formulation of a winning legal strategy and served as the primary draftsman for a number of key motions and memoranda, which led to favorable jury instructions and a judgment of acquittal. United States v. United Water Envtl. Servs., Inc., No. 10-cr-217 (N.D. Ind.).
  • Representation of a major health care system in a putative qui tam action; secured the dismissal of all claims. United States ex rel. Rangarajan v. Johns Hopkins Health Sys. Corp., No. 12-cv-1953 (D. Md.).
  • Representation of a Japanese national in a federal grand jury investigation being led by the Antitrust Division of the US Department of Justice; appeared numerous times before federal prosecutors in an effort to convince them not to charge client.
  • Assistance to a pro bono client in negotiating a misdemeanor plea agreement with the US Attorney's Office. Representation included serving as principal author of sentencing memorandum and arguing on behalf of client at sentencing hearing in the US District Court for the Eastern District of Virginia. The judge accepted the plea and imposed no period of incarceration. United States v. Griese, No. 1:11-mj-196 (E.D. Va.).

Recognition

Katten Muchin Rosenman LLP Pro Bono Service Award, 2014
Robert T. Smith

Education

  • JD, Georgetown University Law Center
    magna cum laude, Order of the Coif, West Outstanding Scholastic Achievement Award
  • BA, University of Richmond
    cum laude

Bar Admissions

  • District of Columbia
  • New York

Court Admissions

  • US Supreme Court
  • US Court of Appeals, District of Columbia Circuit
  • US Court of Appeals, Federal Circuit
  • US Court of Appeals, First Circuit
  • US Court of Appeals, Second Circuit
  • US Court of Appeals, Fourth Circuit
  • US Court of Appeals, Fifth Circuit
  • US Court of Appeals, Sixth Circuit
  • US Court of Appeals, Seventh Circuit
  • US Court of Appeals, Eighth Circuit
  • US Court of Appeals, Ninth Circuit
  • US Court of Appeals, Eleventh Circuit
  • US District Court, District of Columbia
  • US District Court, District of Maryland
  • US District Court, District of North Dakota
  • US District Court, Southern District of New York
  • US District Court, Eastern District of New York

Recognition

Katten Muchin Rosenman LLP Pro Bono Service Award
2014
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Memberships

  • American Arbitration Association, National Panel of Arbitrators
  • American Law Institute
  • New York County Lawyers' Association
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