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Shiloh Rainwater

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Shiloh Rainwater is an associate in the Litigation Department and a member of the Firm’s Appellate, Real Estate, and Mass Torts & Product Liability Groups. Shiloh’s practice spans a broad spectrum of appellate matters and complex commercial disputes, 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. He has been part of the core team that prevailed at the Supreme Court on behalf of the Financial Oversight and Management for Puerto Rico in an 8-1 decision that recognized the Board’s sovereign immunity and at the First Circuit in numerous appeals stemming from Puerto Rico’s historic debt restructuring, including appeals seeking to overturn Puerto Rico’s $33 billion plan of adjustment. Shiloh also helped obtain a critical victory at the Eighth Circuit in an appeal raising a question of first impression concerning whether avoidance actions constitute saleable property of the bankruptcy estate. Several of these 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 routinely turn to Shiloh to handle the most difficult matters at every stage of litigation. Shiloh’s varied experience includes serving as the lead associate representing Walmart in opposing conditional certification of the largest FLSA collective action in history related to COVID-19 screening policies; Warner Brothers Discovery in a $150 million dispute over the value of a tendered interest in a joint venture; and Monsanto in litigating claims alleging that use of the herbicide Roundup causes non-Hodgkin’s lymphoma.

Shiloh maintains an active pro bono practice. 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 prisoners asserting claims against prison officials for violations of their Eighth Amendment rights.

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.