Lawyers

Mark Rosenberg is coordinator of S&C’s Environmental Law and Insurance Groups. He has extensive litigation and transactional experience in insurance, reinsurance, environmental and products liability matters (including asbestos and other mass tort litigation). In the course of such work, Mr. Rosenberg regularly has represented and advised clients on complex international insurance coverage, alter ego, successor liability, fraudulent conveyance and bankruptcy issues. In addition, he has extensive experience in spearheading recoveries of foreign sovereign debt, both through litigation and arbitration. Mr. Rosenberg has acted as international lead counsel in multi-forum coverage litigation, debt recovery and political risk insurance litigation, and national counsel in domestic environmental and toxic tort matters.

Noted by Chambers USA as “a talented litigator, who earns praise for his creative negotiation skills,” Mr. Rosenberg routinely is recognized for his work by leading industry publications, including the Chambers guides, New York Super Lawyers, Euromoney’s Guide to the Leading United States Litigation Lawyers and International Financial Law Review. He has written articles on insurance, environmental, tort, bankruptcy and foreign debt recovery issues, and is past chair of the (i) Reinsurance Subcommittee of the Insurance Coverage Litigation Committee of the American Bar Association (“ABA”); (ii) ABA’s Toxic and Hazardous Substances and Environmental Law Committee; (iii) Directors and Officers Liability Subcommittee of the ABA’s Insurance Coverage Litigation Committee; and (iv) ABA’s Subcommittee on Revisions to the Comprehensive General Liability Policy. Mr. Rosenberg also has been the Tort and Insurance Practice Section’s liaison to the ABA Standing Committee on Environmental Law, and a member of the Tort and Insurance Practice Section’s Task Force on Superfund Reauthorization. He currently is co-chair of the Environmental Committee of the International Section of the New York State Bar Association.

SELECTED REPRESENTATIONS

• Represented CSR in asbestos insurance coverage and antitrust litigation, and related forum disputes, in New Jersey and Australia, against more than 60 insurers from around the world. The litigation entailed anti-suit injunctions, a decision by the highest court of Australia to permit the action to go forward in New Jersey, and summary judgment motions resulting in, among other things, rulings that New Jersey rather than Australian law applied to coverage issues and the right of insurers to rescind for non-disclosure – notwithstanding that the policies were issued in Australia to an Australian insured.
• Developed and spearheaded for CSR a national defense strategy for asbestos litigation resulting in dismissals of CSR for lack of personal jurisdiction from tens of thousands of asbestos personal injury actions and important precedential decisions by the Supreme Courts of Texas, Minnesota and Rhode Island.
• Obtained summary judgment for Turner & Newall plc (“T&N”) finding that T&N is entitled to coverage for asbestos litigation against it under “additional insured” provisions of lost insurance policies of a former subsidiary that had dissolved approximately 20 years earlier.
• Represented Payless ShoeSource in connection with various coverage disputes relating to litigation against it by, among others, Adidas, K-Swiss and Crocs, alleging that Payless had infringed on the trademarks and trade dress of their shoes. Our representation included coverage litigation as well as mediation with different insurers, ultimately leading to successful settlements, even though in the Adidas matter a jury had found Payless guilty of willful infringement. The coverage disputes involved complex issues, including the meaning of “advertising injury,” and damage allocation.
• Representing Payless in connection with disputes with insurers concerning coverage for two pending class actions against it alleging, among other things, millions of dollars in damages for violations of the Telephone Consumer Protection Act.
• Achieved a major victory in the U.S. Court of Appeals for the Second Circuit on behalf of First Manhattan, in a decision holding that CERCLA does not preempt state corporation law, and that the State of New York had no right to claw back liquidating dividends made to shareholders of a dissolving Delaware corporation.
• Represented National Union Fire Insurance Company of Pittsburgh, PA (“NUFI”), a subsidiary of AIG, in two sets of worldwide actions against the Republic of the Congo to enforce arbitration awards and judgments. These enforcement efforts included actions in France, England, Oklahoma, Texas, Delaware, New York and California. The first set of proceedings resulted in a stipulated turnover order requiring the Congo to turn over 50% of oil royalties owed by Amoco until the debt was fully repaid. The next set entailed a levy on the Congo’s top-level country code internet domain name, and an ultimate settlement of the dispute.
• Advised Sompo Japan Insurance Company of America in connection with complex reinsurance disputes.
• Represented Eton Park Capital Management in connection with its efforts to recover from insurers the millions of dollars it lost through purchases of notes forged by Marc Dreier as part of a Ponzi scheme.
• Represented Yeshiva University in disputes with insurers concerning moneys it lost as a result of the Ponzi scheme of Bernard Madoff.
• Advises Bank of Tokyo-Mitsubishi with respect to insurance coverage issues relating to litigation against the bank for alleged Libor manipulation.
• Advised a company involved in the World Trade Center personal injury litigation concerning asbestos liability, alter ego and related insurance issues.
• Represented New National Gypsum Company (“New NGC”) in successful efforts to resist attempts of asbestos plaintiffs’ counsel and others (i) to impose successor liability upon New NGC under the terms of the plan of reorganization of the former National Gypsum Company; (ii) to terminate the bankruptcy court’s channeling order and injunction protecting New NGC from asbestos claims; and (iii) to modify the bankruptcy order providing that New NGC may never be sued for punitive damages. Also advised New NGC in connection with the negotiation and consummation of a settlement arrangement under section 524(g) of the Bankruptcy Code pursuant to which it received a permanent injunction against future asbestos claims.
• Represented A.I. Trade Finance, Inc., a subsidiary of AIG, in a Swedish arbitration, as well as German and Austrian litigations, to recover debts owed by Bulgarian Foreign Trade Bank (“Bulbank”) to various foreign insureds of A.I. Trade. These matters entailed, among other things, (i) pre-judgment attachment in Austria and Germany; (ii) a ruling from the Swedish arbitrators that assignment to A.I. Trade of a contract between A.I. Trade’s insured and Bulbank included assignment to A.I. Trade of the right to arbitrate in Sweden against Bulbank; and (iii) a landmark ruling by the Swedish Supreme Court concerning confidentiality in arbitration. The Swedish case was a controversial one, engendering a good deal of commentary, and is the subject of Mr. Rosenberg’s article entitled “Chronicles of the Bulbank Case – The Rest of the Story,” published at 19 J. Int’l Arb. I (2002).
• Advising BP plc in connection with D&O insurance coverage issues relating to litigation against BP and certain of its officers and directors arising out of the April 20, 2010 explosion and subsequent oil leak at the Deepwater Horizon oil rig in the Gulf of Mexico. S&C is also advising BP plc regarding its yearly D&O insurance policy renewals and proposed changes to the policy language.
• Represented Bank of Montreal (the “Bank”) in its pursuit of insurance coverage, under various Crime policies, for losses due to fraud committed by one of its former traders (David Lee), in collusion with brokerage companies used by the Bank. The dispute involves complex factual and legal issues and insurance policies governed by the law of Ontario, Canada. The conspiracy entailed falsification by the trader of the values of natural gas options in his portfolio, and affirmation of the accuracy of these values by the brokerage company, which was supposed to provide independent valuations but simply regurgitated values provided to it surreptitiously by the dishonest trader. Upon discovery of the fraud, Bank of Montreal had to restate its financial position, writing down the value of its assets by more than CAN $600 million. Our efforts resulted in a successful settlement of the coverage dispute.
• Advises Barclays with respect to coverage under fidelity insurance policies in order to obtain recoveries for amounts stolen from customers by a dishonest employee. The British bank dismissed the employee, who handled accounts of non-resident Indian customers, for alleged misuse of client money. The employee joined Barclays’ private banking group in Singapore in 2010 as part of efforts to build South Asian assets.
• Advising Canada Pacific Railways with respect to insurance coverage and other issues relating to claims against the company arising from a July 2013 train derailment in Lac-Megantic, Canada, that killed 47 people and caused widespread environmental contamination and property damage.
• Advises The Goldman Sachs Group, Inc. regarding its D&O insurance program, and has successfully represented it in a number of disputes with its D&O insurers.
• Advised Telstra concerning negotiation of a POSI (Public Offering Statement Insurance) with respect to secondary offerings of some of its shares in the Chinese car sale website Autohome.
• Advises Volaris with respect to obtaining coverage from its D&O insurers for a pending securities claim against the company and its directors arising out of a recent public offering.
• Advised Lightyear Capital concerning its D&O insurance program.
• Represented Eton Park Capital in connection with a successful resolution of a dispute with its insurers concerning claims against the company relating to the purchase of fraudulent notes.
• Represented, on a pro bono basis, Metropolitan Council on Jewish Poverty (“Met Council”) in its pursuit of insurance coverage, under its Crime and Directors and Officers Liability (“D&O”) policies. Our efforts resulted in a successful settlement.