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Shiloh Rainwater

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Shiloh Rainwater is a senior counsel in the Litigation Department and a member of the Appellate, International Arbitration, Real Estate Litigation, and Mass Torts & Product Liability Groups. Shiloh’s practice spans a broad spectrum of complex disputes arising in a wide range of industries, with a particular emphasis on contracts, bankruptcy, constitutional law, labor & employment, real estate, and securities.

Shiloh has successfully represented clients in high-stakes appeals in state and federal appellate courts across the country, including at the certiorari and merits stages in the U.S. Supreme Court. His notable representations include securing a critical victory for the Financial Oversight and Management Board for Puerto Rico at the Supreme Court in an appeal concerning the Board’s sovereign immunity. He also argued and prevailed on behalf of the Board at the First Circuit in an appeal concerning hundreds of millions of dollars in claims for administrative expenses in connection with Puerto Rico’s historic debt restructuring. Several of his representations have earned “Litigator of the Week” runner-up and shout-out honors from The American Lawyer. He has also co-authored chapters of Principles of Appellate Litigation: A Guide to Modern Practice (PLI Press), a leading treatise on appellate practice that is updated annually.

At the trial level, clients have turned to Shiloh to handle the most difficult matters at every stage of litigation. His varied experience includes second-chairing an arbitration related to a $90 million dispute between members of an LLC that owns commercial real estate in Manhattan and serving as the lead associate defending a nursing facility in a mass tort case centering on allegations of wrongful death related to COVID-19.

Shiloh maintains an active pro bono practice. Among his notable cases, Shiloh argued and prevailed at the Second Circuit on behalf of an incarcerated client alleging constitutional claims against prison officials. Following multiple appeals to the U.S. Court of Appeals for Veterans Claims, Shiloh also achieved a rare victory on behalf of a veteran seeking benefits from the Department of Veterans Affairs related to the costs of pursuing an advanced degree.

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. He also clerked for the Honorable Gregory A. Phillips of the U.S. Court of Appeals for the Tenth Circuit.

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Posting on social media about businesses located in another state could give rise to personal jurisdiction in that state, according to a recent landmark opinion by a sharply divided Montana Supreme Court. In Groo v. Montana Eleventh Judicial District Court, the Court considered whether several Facebook posts made by Melissa Groo, a New York-based wildlife-photography ethicist, concerning Triple D Game Farm, a wildlife-photography farm in Montana, supported personal jurisdiction in an action by Triple D against Groo in Montana state court for tortious interference with contractual relations and prospective economic advantage. In the posts, Groo had tagged individuals and companies doing business with Triple D, three of whom resided in Montana, and encouraged them to cancel their business with the company because of its alleged mistreatment of animals. Four Justices found the posts sufficient to exercise specific personal jurisdiction over Groo; three dissented.

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.

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.