Robert A. Long

Partner

rlong@cov.com
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Covington & Burling LLP
One CityCenter
850 Tenth Street, NW
Washington, DC 20001-4956
Tel: 202.662.5612

   


 

Practices

Education

  • Yale Law School, J.D., 1985
    • Yale Law Journal, Note Editor
  • University of Oxford, B.A./M.A., 1982
    • Rhodes Scholar
  • University of North Carolina at Chapel Hill, B.A., 1980
    • Morehead Scholar
    • National Merit Scholar, Phi Beta Kappa

Judicial Clerkship

  • Hon. Lewis F. Powell, U.S. Supreme Court, 1986-1987
  • Hon. John Minor Wisdom, U.S. Court of Appeals, Fifth Circuit, 1985-1986

Bar Admissions

  • District of Columbia


Robert Long is a partner who practices in the areas of appellate litigation, antitrust, and administrative law.  He chairs Covington's Appellate and Supreme Court Litigation Group.  Mr. Long has argued 18 cases before the U.S. Supreme Court and has played a substantial role in the briefing or oral argument of more than 150 appeals.  Named a Legal “Champion” by the National Law Journal and an “Appellate MVP” by Law360, he is recognized as a leading appellate lawyer in numerous publications, including Best Lawyers in America, Chambers USA, and Legal 500.  He has been described as “a great oral advocate” (Chambers 2014) and “a brilliant lawyer” who “gets tremendous respect from the court” (Chambers 2013). He was a law clerk to Justice Lewis F. Powell, Jr., of the U.S. Supreme Court and Judge John Minor Wisdom of the U.S. Court of Appeals for the Fifth Circuit. From 1990 to 1993, he served as an Assistant to the Solicitor General of the United States.  Mr. Long is an adjunct professor at Georgetown University Law Center.

Representative Matters

  • Fifth Third Bancorp v. Dudenhoeffer (U.S. Supreme Court 2014) Mr. Long argued on behalf of Fifth Third Bancorp in this ERISA case.  The Court vacated an adverse decision against the bank, holding that fiduciaries of Employee Stock Ownership Plans (ESOPs) are not entitled to a “presumption of prudence” when a plaintiff challenges the fiduciary’s decision to continue offering company stock as an investment option, but such challenges must meet a series of requirements in order to survive a motion to dismiss.
  • National Federation of Independent Business v. Sebelius (The Health Care Case) (U.S. Supreme Court 2012).  Mr. Long was appointed by the Supreme Court to brief and argue a threshold jurisdictional issue in these cases, which challenged the constitutionality of the Patient Protection and Affordable Health Care Act.  The Court asked Mr. Long to argue that litigation challenging the Act’s minimum coverage provision is subject to the Anti-Injunction Act, 26 U.S.C. § 7421(a), which prohibits lawsuits brought to enjoin the collection of federal taxes.  The Court held that the Anti-Injunction Act did not bar the litigation, but agreed with several of Mr. Long’s arguments in holding that the minimum coverage provision imposes a “tax” for constitutional purposes.
  • Conkright v. Frommert (U.S. Supreme Court 2010).  Mr. Long was counsel to the Xerox Corporation pension plan in this ERISA case.  The Court ruled for the Xerox Plan, holding that courts should defer to the plan administrator's good-faith interpretation of the terms of an ERISA plan, even when the plan administrator's initial interpretation was erroneous.
  • Watters v. Wachovia Bank, N.A. (U.S. Supreme Court 2007).  Mr. Long was counsel to Wachovia Bank in this preemption case.  The Court ruled for Wachovia, holding that national bank operating subsidiaries are supervised exclusively by the federal Office of the Comptroller of the Currency.  Mr. Long successfully argued this issue on behalf of the Wells Fargo Bank in Wells Fargo Bank N.A. v. Boutris (9th Cir. 2005) and on behalf of National City Bank in National City Bank of Indiana v. Turnbaugh (4th Cir. 2006). 
  • Bell Atlantic v. Twombly (U.S. Supreme Court 2007), Leegin Creative Leather Products v. PSKS, Inc. (U.S. Supreme Court 2007), and Texaco v. Dagher (U.S. Supreme Court 2006).  Mr. Long was counsel to the American Petroleum Institute, which filed briefs as amicus curiae in each of these antitrust cases.  Twombly clarified the standard for dismissing a complaint.  In Leegin, the Court overuled its prior decisions holding that vertical minimum resale price maintenance is a per se violation of the Sherman Act.  Dagher addressed the legal standard for antitrust analysis of joint ventures.
  • Gutierrez v. Wells Fargo Bank, N.A. (U.S. Court of Appeals for the Ninth Circuit, 2012).  Mr. Long was counsel to Wells Fargo Bank in this appeal from a $203 million judgment entered against the bank.  The plaintiffs challenged the bank’s practice of posting transactions to customer accounts beginning with the largest-dollar item and proceeding to the smallest-dollar item, which had the effect of increasing customer overdraft fees.  The Ninth Circuit held that state-law claims based on a national bank’s order of posting transactions, and on inadequate disclosure of posting order, are preempted by federal law.  The court vacated the $203 million judgment in its entirety and remanded for consideration of what relief, if any, is appropriate in light of the court’s decision.
  • In re Family Dollar FLSA Litigation (U.S. Court of Appeals for the Fourth Circuit 2011).  Mr. Long was counsel to Family Dollar Stores in this appeal under the Fair Labor Standards Act.  The court of appeals held that a store manager’s primary duty was management, and that she was exempt from the overtime requirements of the FLSA.
  • In re Zyprexa Products Liability Litigation (U.S. Court of Appeals for the Second Circuit 2010).  Mr. Long was counsel to Eli Lilly and Company in this major class action appeal.  Plaintiffs sought billions of dollars in damages under the federal RICO statute based on allegations that Lilly made misrepresentations about the safety and efficacy of its best-selling medication Zyprexa.  The district court denied Lilly’s motion for summary judgment and certified a class of tens of thousands of insurance companies, pension funds and other “third party payor” plaintiffs.  After granting Lilly’s request for permission to take an interlocutory appeal, the court of appeals held that the case could not proceed as a class action because plaintiffs needed individualized evidence of causation and injury to prove their claims.  The court of appeals also ruled that Lilly was entitled to summary judgment on plaintiffs’ claim that the price of Zyprexa was too high.

Previous Experience

  • Assistant to the Solicitor General of the United States (1990-93)

Honors and Rankings

  • Law360, named to the "Appellate A-List"
  • National Law Journal, "Legal Champion"
  • Law360, "Most Valuable Player" - Appellate
  • Benchmark Appellate, National Litigation Star
  • Best Lawyers in America, listed for Appellate Litigation, Administrative Law, Banking and Finance Litigation, Commercial Litigation, and ERISA Litigation
  • Chambers USA: America’s Leading Lawyers, Appellate Litigation
  • Guide to the World’s Leading Lawyers, Appellate Litigation
  • Legal 500 US, Supreme Court & Appellate Litigation and ERISA Litigation
  • Washingtonian Magazine, Best Lawyers
  • DC Super Lawyers, Appellate; also ranked in the "Top 100" Lawyers in DC
  • Knight's Cross of the Order of Queen Isabella (awarded by the King of Spain for representing the Spanish Government in a case that determined ownership of two sunken warships)

Pro Bono

  • Robertson v. United States ex. rel. Watson (U.S. Supreme Court 2010).  Mr. Long was counsel for Respondent Watson in a case that raised the question whether victims of domestic violence can pursue criminal contempt sanctions for violation of a protective order.  The Court dismissed the case, leaving the lower court's decision in favor of Respondent as the final decision in the case.
  • Lopez v. Gonzales (U.S. Supreme Court 2006).  Mr. Long was counsel for Petitioner Lopez in this immigration case.  The Court ruled for Mr. Lopez, holding that a drug crime is an "aggravated felony" for immigration law purposes only if it is a felony under the federal drug laws.
  • Brown v. Legal Foundation of Washington, 538 U.S. 216 (2003).  Mr. Long was counsel to amicus curiae Texas Equal Access to Justice Foundation.  The Court held that Interest on Lawyers Trust Accounts (“IOLTA”) programs do not violate the Takings Clause of the Fifth Amendment.

Memberships and Affiliations

  • American Academy of Appellate Lawyers, Fellow
  • American Bar Foundation, Fellow
  • American Law Institute, Member
  • Edward Coke Appellate Inn of Court, Master (President, 2009-2010)
  • Georgetown University Law Center, Adjunct Professor (Administrative Law and Solicitor General Seminar)
  • University of Virginia School of Law, Lecturer, 1998-2006 (Appellate Litigation Seminar)
  • New York University School of Law, Dwight D. Opperman Institute of Judicial Administration, Board of Directors 
  • Supreme Court Historical Society, Board of Trustees
  • Historical Society of the District of Columbia Circuit, Board of Directors, 2006-2012
  • The Barker Foundation, Past President of the Board of Trustees

Publications and Speeches

  • "Panel Discussion on Oral Argument," Supreme Court Practice Seminar, International Municipal Lawyers Association, State and Local Legal Center, and Georgetown University Supreme Court Institute (3/4/2014)
  • "Supreme Court Update," Organization for International Investment General Counsel Conference (10/15/2013)
  • "Panel Discussion on Oral Argument," National Association of Attorneys General Appellate Practice Conference (5/14/2013)
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