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Recent Developments in Administrative Law for the Communications Industry

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The FCBA Judicial Committee is sponsoring a webinar on recent developments in administrative law and their implications for communications law and practitioners.

The FCBA Judicial Committee is sponsoring a webinar on recent developments in administrative law and their implications for communications law and practitioners.Co-chair of the firm’s Appellate and Supreme Court Practice Group, partner Joe Palmore will moderate a panel on the "Potential Consequences of West Virginia v. EPA and the Major Questions Doctrine for FCC decisions."<hr>

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<div class="videoWrapper">Joe Palmore co-chairs Morrison Foerster’s Appellate and Supreme Court practice. Chambers USA describes him as “an outstanding oral advocate,” who is “calm, focused, effective and doesn’t back down,” and has “complete command of the facts.” Joe “writes great briefs” (Chambers USA), with one client recounting that “the Court mirrored the language he thoughtfully chose in its ultimate order” (Legal 500).</div>During a recent U.S. Supreme Court term, Joe successfully argued two cases: Law360 called one of them (Thole v. U.S. Bank) a “landmark ruling” that “made huge waves in the ERISA litigation arena” and named the other (Atlantic Richfield Co. v. Christian) one of the “biggest environmental law decisions” of the year. Joe’s oral argument before the Supreme Court on the preemptive scope of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) in CTS Corp. v. Waldburger was described in the National Law Journal as “brilliant” and a “template for anyone arguing a statutory case before these nine justices in the future.”Joe’s practice extends to federal and state appellate courts across the country, where he has handled appeals on issues as varied as antitrust, class actions, communications, false advertising, intellectual property, and securities. Joe has secured important victories in the Second Circuit, where he clerked. For example, he prevailed in a securities class action for an online marketplace and a fraud case against an investment bank. A <a href="/resources/news/210426-no-circuit-split" target="_self">Reuters columnist</a> called one of Joe’s Second Circuit wins a “major ruling” that “put significant qualifiers” on constitutional standing to sue in data breach cases.Joe also has a successful track record in the Ninth Circuit, including winning for a beverage company defending against an antitrust suit and for an equipment manufacturer embroiled in a dispute over U.S. discovery for foreign litigation. One of Joe’s victories in the Federal Circuit was described by another practitioner as having “saved from the fire tens of thousands of patents that would have gone up in smoke.” And Joe has won appeals in multiple state appellate courts, including those of New York (both the Court of Appeals and First Department), California, Massachusetts, New Jersey, and Kentucky.Before joining Morrison Foerster, Joe served as an Assistant to the Solicitor General at the U.S. Department of Justice. During his nearly five years in the Solicitor General’s Office, Joe had principal responsibility for briefing the constitutionality of the Affordable Care Act’s minimum coverage provision, which was upheld in the Supreme Court’s landmark decision in NFIB v. Sebelius. For his work on that case, Joe received the Attorney General’s Award for Exceptional Service—the Department of Justice’s highest honor for employee performance. He also received the Environmental Protection Agency General Counsel’s medal for his successful defense of the EPA’s interstate air pollution rules in EPA v. EME Homer City Generation.Before working for the Justice Department, Joe spent three years as Deputy General Counsel at the Federal Communications Commission, where he oversaw all litigation involving constitutional, statutory, and administrative-law challenges to the agency’s actions and presented oral argument in the D.C. Circuit and other federal courts of appeals. His FCC experience includes virtually all aspects of communications regulation, including broadcast, cable, wireless, wireline, and Internet.Joe clerked for Justice Ruth Bader Ginsburg of the U.S. Supreme Court, Judge John Gleeson of the U.S. District Court for the Eastern District of New York, and Judge Dennis Jacobs of the U.S. Court of Appeals for the Second Circuit in New York. Joe earned his J.D. from the University of Virginia School of Law, his M.A. in legal history from the University of Virginia, and his A.B. magna cum laude from Harvard University.Joe is a Fellow in the American Academy of Appellate Lawyers, selected for his distinction as an appellate lawyer. He is also a board member of the Historical Society of the District of Columbia Circuit; a master in, and former officer of, the Coke Appellate Inn at Court; a member of the Technology Litigation Advisory Committee of the U.S. Chamber Litigation Center; and a co-chair of the Federal Communications Bar Association’s judicial practice committee. In 2021, the American Cancer Society Cancer Action Network gave Joe its Judicial Advocacy Initiative Award for his pro bono work in healthcare cases.He is recommended annually by Chambers USA, Legal 500, and Best Lawyers for appellate law.<h4>Supreme Court Arguments</h4><ul><li>Thole v. U. S. Bank, N. A. <a href="/resources/video-audio/200113-thole-v-u-s-bank" target="_self">(audio recording)</a> Whether Article III of the Constitution requires a plaintiff to demonstrate individual financial loss or the imminent risk of financial loss to assert a fiduciary duty claim against a pension plan</li></ul><ul><li>Atlantic Richfield Co. v. Christian <a href="/resources/video-audio/191203-atlantic-richfield-v-christian" target="_self">(audio recording) </a>Whether state-law pollution clean-up remedies are barred by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)</li></ul><ul><li>CTS Corp. v. Waldburger <a href="/resources/video-audio/191203-atlantic-richfield-v-christian" target="_self">(audio recording)</a> Whether the U.S. Court of Appeals for the Fourth Circuit correctly interpreted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to apply to statutes of repose as well as to statutes of limitations</li></ul><ul><li>Abramski v. United States <a href="/resources/video-audio/140122-abramski-v-united-states.html" target="_self">(audio recording)</a> Involving the materiality of a false statement made when purchasing a firearm</li></ul><ul><li>Fernandez v. California <a href="/resources/video-audio/131113-fernandez-california" target="_self">(audio recording)</a> Whether the Fourth Amendment prohibits a warrantless search of a residence when the defendant has previously objected to a search but is no longer present and the co-tenant consents</li></ul><ul><li>Florida v. Harris <a href="/resources/video-audio/121031-florida-harris" target="_self">(audio recording)</a> Whether a drug-detection dog’s alert to the exterior of a vehicle provides an officer with probable cause to conduct a warrantless search of the interior of the vehicle</li></ul><ul><li>Horne v. Department of Agriculture <a href="/resources/video-audio/130320-horne-department-agriculture" target="_self">(audio recording)</a> Involving jurisdictional requirements for Takings Clause claims</li></ul><ul><li>US Airways v. McCutchen <a href="/resources/video-audio/121127-us-airways-inc-mccutchen" target="_self">(audio recording)</a> Involving the limits on equitable relief available in suits against ERISA plans by beneficiaries and participants</li></ul><ul><li>Pacific Operators Offshore v. Valladolid <a href="/resources/video-audio/111011-pacific-operators-offshore-valladolid" target="_self">(audio recording)</a> Involving the territorial limits on compensation available under the Outer Continental Shelf Lands Act</li></ul><ul><li>Roberts v. Sea-Land Services <a href="/resources/video-audio/120111-roberts-v-sea-land-services" target="_self">(audio recording)</a> Involving benefit calculations under the Longshore and Harbor Workers’ Compensation Act</li></ul><ul><li>Borough of Duryea v. Guarnieri <a href="/resources/video-audio/110322-borough-duryea-guarnieri" target="_self">(audio recording)</a> Whether state and local government employees may sue their employers for retaliation under the First Amendment’s Petition Clause when they petition the government on matters of private concern</li></ul><ul><li>Chase Bank USA v. McCoy <a href="/resources/video-audio/101208-chase-bank-usa-mccoy" target="_self">(audio recording)</a> Whether Regulation Z of the Truth in Lending Act requires a creditor to give cardholders advance notice any time they raise the interest rate for default</li></ul><h4>Representative Appellate Arguments</h4><ul><li>Wamai v. Industrial Bank of Korea (2d Cir.) <a href="/resources/video-audio/221013-wamai-v-industrial-bank-of-korea" target="_self">(audio recording)</a> Secured affirmance of forum non conveniens dismissal of fraudulent conveyance claims against foreign bank</li></ul><ul><li>Cohen v. Apple Inc. (9th Cir.) <a href="/resources/video-audio/211210-andrew-cohen-v-apple-inc" target="_self">(video)</a> Successfully defended dismissal of state-law claims as preempted by Communications Act</li></ul><ul><li>VeroBlue Farms USA Inc. v. Canaccord Genuity LLC (2d Cir.) <a href="/resources/video-audio/210901-veroblue-farms-usa-inc-v-canaccord-genuity-llc" target="_self">(audio recording)</a> Successfully defended dismissal of fraud claim against investment bank</li><li>McLaren v. The UPS Store Inc. (3d Cir.) <a href="https://www2.ca3.uscourts.gov/oralargument/audio/22-1379_22-1380_McLarenv.UPS.mp3" target="_blank">(audio recording)</a> Secured reversal of order remanding cases to state court</li><li>Cho et al. v. BlackBerry Limited et al (2d Cir.) <a href="/resources/video-audio/211030-cho-v-blackberry-ltd" target="_self">(audio recording)</a> Successfully defended dismissal of named plaintiffs’ individual securities claims on res judicata grounds in putative securities class action</li><li>Richardson v. The UPS Store, Inc. (Massachusetts Supreme Judicial Court) <a href="/resources/video-audio/200409-richardson-v-the-ups-store" target="_self">(audio recording)</a> Secured win on question certified by federal district court on meaning of Massachusetts notary statutes</li><li>Firefighters’ Retirement System, et al. v. Consulting Services Group (5th Cir.) <a href="/resources/video-audio/180705-firefighters-retirement-consulting-services-group" target="_self">(audio recording)</a> Secured reversal of district court and dismissal with prejudice of accounting malpractice suit as time-barred</li><li>Altayyar v. Etsy, Inc. (2d Cir.) <a href="/resources/video-audio/190418-altayyar-v-etsy" target="_self">(audio recording)</a> Secured dismissal of securities fraud case</li><li>Raytheon Company v. Indigo Systems Corporation (Fed. Cir.) <a href="/resources/video-audio/180112-raytheon-company-indigo-systems-corporation" target="_self">(audio recording)</a> Defeated attempt to upend jury verdict of no-liability in long-running trade secrets case </li><li>First Advantage LNS, Inc., et al. v. LexisNexis Risk Solutions, Inc. (New York Appellate Division, First Department) <a href="/resources/video-audio/190102-first-advantage-v-lexisnexis" target="_self">(video)</a> Secured victory for LexisNexis in significant contract dispute</li><li>Nikon Corporation v. ASML US, Inc. (9th Cir.) <a href="/resources/video-audio/171207-nikon-corporation-asml-us" target="_self">(video)</a> Secured U.S. discovery for use in foreign patent litigation</li><li>Odunbaku v. Odunbaku (New York Court of Appeals) <a href="/resources/video-audio/161020-odunbaku-v-odunbaku" target="_self">(video)</a> Secured a unanimous ruling for client seeking child support and established important procedural protections for litigants in New York’s family courts</li><li>Bank v. Uber Technologies, Inc. (2d Cir.) Obtained dismissal of a Telephone Consumer Protection Act suit on the ground that the call was political speech</li><li>Helping Hand Tools et al. v. U.S. Environmental Protection Agency et al. (9th Cir.) <a href="/resources/video-audio/160719-helping-hand-tool-environmental-protection" target="_self">(video)</a> Secured a victory in a case that set an important precedent for regulation of greenhouse gas emissions from combustion of renewable biofuels</li><li>Immersion Corp. v. HTC Corp. (Fed. Cir.) <a href="/resources/video-audio/160506-immersion-corp-htc-corp" target="_self">(audio recording)</a> Securing reversal of district court, successfully defended the timeliness of Immersion’s patent application and, by extension, those of tens of thousands of patent owners whose patents were at risk of invalidation</li><li>Nelson Coniglio, et al. v. Bank of America, NA (11th Cir.) Secured reversal of default judgment against Bank of America</li><li>Gregory Berry v. LexisNexis Risk & Information (4th Cir.) <a href="/resources/video-audio/150915-gregory-berry-lexisnexis-risk-information" target="_self">(audio recording)</a> Defended settlement of one of the largest class actions ever certified from objector challenges</li><li>In re: GNC Corporation; Triflex Products Marketing and Sales Practices Litigation (4th Cir.) <a href="/resources/video-audio/150325-gnc-corporation-marketing-sales-practices" target="_self">(audio recording)</a> Secured dismissal of false-labelling claim against GNC</li><li>Core Communications, Inc. v. FCC (D.C. Cir.) <a href="/resources/video-audio/091016-core-communications-inc-fcc" target="_self">(audio recording)</a> Successfully defended FCC’s intercarrier compensation rules</li><li>Star Wireless LLC v. FCC, et al. (D.C. Cir.) <a href="/resources/video-audio/080313-star-wireless-llc-fcc" target="_self">(audio recording)</a> Defeated challenge to imposition of monetary forfeiture for violation of wireless auction anti-collusion rules</li></ul>

Joseph Palmore

Partner

Appellate + Supreme Court

Recent Developments in Administrative Law for the Communications Industry

08 Feb 2023 12:00 PM - 2:00 PM EST