The U.S. Court of Appeals for the Tenth Circuit recently held for the first time that parties opposing confirmation of nondomestic arbitral awards (i.e., awards issued in disputes involving property located or conduct occurring outside the U.S.) issued in the U.S. or under U.S. arbitration law are not limited to the grounds set forth in the Inter-American Convention on International Commercial Arbitration (the Panama Convention). Instead, the court ruled that defenses to confirmation under the Federal Arbitration Act (FAA) apply.
Shiloh Rainwater is an associate in the Litigation Department and a member of the Firm’s Appellate Practice Group, which was named to the National Law Journal’s 2020 Appellate Hot List. He litigates appeals spanning a wide array of subject areas, including bankruptcy, constitutional law, securities, employment, and contracts. Shiloh has successfully represented clients in high-stakes appeals in state and federal appellate courts across the country, including the U.S. Supreme Court. Among his notable representations, Shiloh has obtained victories at the First Circuit on behalf of the Financial Oversight and Management Board for Puerto Rico in numerous appeals stemming from Puerto Rico’s $135 billion bankruptcy—the largest in American history.
In addition, Shiloh litigates a range of commercial disputes at the trial level involving, among other things, products liability, real estate, contracts, securities regulation, shareholder actions, and restructurings. His experience spans the entire litigation lifecycle, from commencing litigation through discovery, motion practice, and trial. Most recently, Shiloh was a member of a trial team litigating a protracted contract dispute between former co-owners of nursing facilities in California. Among other matters, Shiloh secured dismissal of claims for intentional interference with contract against a major French logistics company; obtained summary judgment on behalf of a debt fund seeking to enforce guarantees executed in connection with financing a condominium project in Brooklyn; and contributed to a favorable outcome in expedited arbitration proceedings concerning violations of a commercial non-compete.
Shiloh maintains a robust pro bono practice, representing clients in a variety of matters. For several years, he has provided pro bono representation to a veteran seeking vocational rehabilitation & employment benefits from the Department of Veterans Affairs. He has also represented a prisoner asserting claims against prison officials for violations of his Eighth Amendment rights. And, he has represented a class of tenants in public housing seeking to compel New York to address persistent mold issues.
Before joining Proskauer, Shiloh served as a law clerk to the Honorable James O. Browning of the U.S. District Court for the District of New Mexico, one of the nation’s most prolific federal judges. Shiloh also clerked for the Honorable Gregory A. Phillips of the U.S. Court of Appeals for the Tenth Circuit.
The Supreme Court recently granted three petitions for certiorari challenging the Federal Circuit’s holding in Arthrex v. Smith & Nephew that administrative patent judges of the Patent Trial and Appeal Board (PTAB) are unconstitutionally appointed. Under the Patent Act, PTAB judges are appointed by the Secretary of Commerce in consultation with the Director of the Patent and Trademark Office (PTO), both of whom are presidentially appointed. In Arthrex—an appeal from an inter parties review challenge to Arthrex’s ‘907 patent—Arthrex argued that PTAB judges are “principal” officers under the Constitution’s Appointments Clause and must be appointed by the President, with the advice and consent of the Senate, rather than “inferior” officers, who can be appointed by heads of departments.
The Second Circuit recently revived a putative securities class action against Alibaba Group Holding Ltd. and four of its top executives for alleged material misrepresentations in connection with the company’s $25 billion initial public offering in September 2014 – the largest in U.S. history. Chief Judge Colleen McMahon of the U.S. District Court for the Southern District of New York had dismissed the suit in June 2016, holding that the plaintiffs failed to state a claim under the Securities Exchange Act of 1934. In a summary order last week, the Second Circuit vacated and remanded, concluding that Judge McMahon misapplied Rule 12(b)(6) standards in dismissing the investors’ claims.