About Robert T. Smith

For clients across a variety of industries — from health care to financial services — Robert Smith tackles their most important legal challenges, including civil and criminal appeals, dispositive motions at the trial-court level, enforcement actions and government investigations.

Effective advocacy in high-stakes appeals and trials

Drawing on his experience 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 has assisted on critical motions in federal and state trial courts throughout the country. Rob's written advocacy has covered a wide range of substantive areas, including environmental matters, health care fraud and intellectual property disputes. A generalist in some of these areas, Rob excels at drafting creative and concise arguments that resonate with judges, who are also generalists.

Rob has substantial experience as an oral advocate. He has argued high-stakes appeals before the US Courts of Appeals for the First, Second, Fourth, Fifth, Sixth, Eighth and Federal Circuits. He also has appeared numerous times in trial courts, where he has successfully argued dispositive motions — earning, in one case, the dismissal of all felony charges against a corporate defendant under the Outer Continental Shelf Lands Act.

Rob also has assisted corporate and individual clients at trial. In one federal jury trial that Rob co-chaired, he delivered the opening statement, cross-examined the government's expert witness and argued the vast majority of motions. In another criminal case, Rob served as a legal consultant to the defense team and drafted many of its motions. In both cases, Rob helped lay the foundation for verdicts of acquittal for his clients on all charges.

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

In his active pro bono practice, 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 for an 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.

Rob began his legal career as a law clerk to the Honorable John M. Walker Jr., Chief Judge of the US Court of Appeals for the Second Circuit. Prior to and during law school, Rob served as a legislative assistant and legislative correspondent to Representative Rush D. Holt of the US House of Representatives.

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Practice Focus

  • Appellate and Supreme Court litigation
  • Insurance and health care fraud litigation
  • False Claims Act investigations and litigation
  • White-collar defense and investigations
  • Financial services litigation
  • Environmental criminal investigations and litigation

Representative Experience

  • Argued on behalf of major health care system and university before the US Court of Appeals for the Fourth Circuit in multiple lawsuits alleging fraud and retaliation under the False Claims Act and discrimination and retaliation under Title VII of the Civil Rights Act of 1964. Secured dismissal of all claims from the District Court after proving that plaintiff had engaged in litigation-related misconduct. Obtained unanimous, precedential opinion from the Fourth Circuit affirming the sanction of dismissal.
  • Defended medical company sued by competitor for tortious interference with contract and other common-law claims. Secured dismissal of the complaint by the US District Court for the District of Maryland.
  • Represent large financial institution in dispute over the scope of insurance coverage for third-party claims brought against the institution. The case is pending before the US Court of Appeals for the First Circuit.
  • Represented publicly traded company in 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 dismissal of the plaintiffs’ complaint.
  • Successfully represented a corporate client charged with felony violations of the Outer Continental Shelf Lands Act. 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.).
  • Represented 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 Environmental and Workplace Safety practice to develop legal arguments that helped convince Department of Justice to decline filing criminal charges.
  • Successfully represented two securities professionals in a petition for review 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.
  • Represented 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 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).
  • Successful argument before US Court of Appeals for Sixth Circuit, obtaining authorization for client to file second challenge to state court conviction through actual innocence gateway of Antiterrorism and Effective Death Penalty Act.
  • Coauthor of opening and reply briefs on behalf of publicly traded company in appeal before US Court of Appeals for Ninth Circuit raising question whether Securities Litigation Uniform Standards Act divested State courts of concurrent jurisdiction to adjudicated covered class actions arising under Securities Act of 1933.
  • Primary author of amicus curiae brief on behalf of several industry associations in litigation before US Supreme Court over 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 arguments that were raised in amicus curiae brief; it held that EPA lacked authority to rewrite clear statutory provisions of the Clean Air Act.
  • 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).
  • Assist financing company in obtaining dismissal of tort claims seeking to establish precedent that would preclude such companies from extending second lines of credit to small businesses.
  • Represented high-profile foreign national in OFAC sanctions matter and successful petition for removal from Special Designated Nationals and Blocked Persons List by OFAC.
  • Assisted publicly held company in negotiating a non-prosecution agreement resolving alleged violations of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030. 
  • Appellate
  • Successfully represented transgender ironworker in 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).
  • Trial/Criminal defense
  • Successful defense of client, as co-chair of federal criminal trial in the US District for Eastern District of Virginia, against 10 counts of wire fraud. Representation included delivering opening statement to jury, cross-examining government's expert witness and making an argument that led to district court to adopt key jury instruction that helped secure judgment of acquittal.
  • Successful defense of corporate client, as member of trial team, against charges of conspiracy and tampering in violation of Clean Water Act; assisted with formulation of winning legal strategy and served as primary draftsman for number of key motions and memoranda, which led to favorable jury instructions and judgment of acquittal.
  • Assistance to pro bono client in negotiating misdemeanor plea agreement with US Attorney's Office. Representation included serving as principal author of sentencing memorandum and arguing on behalf of client at sentencing hearing in US District Court for Eastern District of Virginia. Judge accepted the plea and imposed no period of incarceration.

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