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Second Circuit En Banc Review: Inching Upwards?

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Joseph Palmore and Alison Hung authored a New York Law Journal article titled “Second Circuit En Banc Review: Inching Upward?”...

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Joseph Palmore and Alison Hung authored a New York Law Journal article titled “Second Circuit En Banc Review: Inching Upward?” examining whether the U.S. Court of Appeals for the Second Circuit has shown greater willingness to rehear cases en banc. The article describes the court’s longstanding reluctance to grant en banc review, grounded in deference to three-judge panels and concerns about efficiency and collegiality. It also highlights a modest rise in en banc decisions over the past five years, while noting that the court continues to lag behind other circuits. In addition, the authors discuss how judges use dissents and concurrences from denials of rehearing to challenge panel rulings or draw attention to issues that may warrant Supreme Court review.Read the <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt6a3abc0e8bafa9c1/699f3550883c637f844d8501/260217-second-circuit-en-banc-review-inching-upwards.pdf" target="_blank">full article</a>.Reprinted with permission from the February 17th edition of the “New York Law Journal” © 2026 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or <a href="mailto:asset-and-logo-licensing@alm.com">asset-and-logo-licensing@alm.com</a>.

Second Circuit En Banc Review: Inching Upwards?

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<div class="li-text-orange">Joe Palmore chairs Morrison Foerster’s Appellate and Supreme Court practice and is resident in the firm’s Washington, D.C. and New York offices. He leads high-stakes appeals in the U.S. Supreme Court, federal courts of appeals, and state appellate courts, including the New York Court of Appeals and the Appellate Division, First Department.Joe has argued 13 cases in the U.S. Supreme Court. Law360 called one of them (Thole v. U.S. Bank) a “landmark ruling” that “made huge waves in the ERISA litigation arena” and named another (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, contract disputes, 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="https://www.mofo.com/resources/news/210426-no-circuit-split.html">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 is also a go-to lawyer for major New York state appeals, having argued and won cases in the New York Court of Appeals and the Appellate Division, First Department. In particular, he has litigated complex contract disputes before the First Department, both as counsel for appellants and counsel for respondents.  He has also handled appeals in other state appellate courts, including those of California, Massachusetts, New Jersey, Illinois, New Hampshire, and Kentucky.Joe also has a successful track record in the Ninth Circuit, including winning for a software company in a securities class action, a beverage company defending against an antitrust suit, and 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.” Joe is recommended annually by Chambers USA, Legal 500, and Best Lawyers for appellate law. Chambers USA describes him as “an outstanding oral advocate,” who is “calm, focused, effective and doesn’t back down,” and who 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).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 represented the United States in the Supreme Court on a range of civil, criminal, and regulatory cases. He received the Attorney General’s Award for Exceptional Service—the Department of Justice’s highest honor for employee performance—and the Environmental Protection Agency General Counsel’s medal.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. He 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 former co-chair of the Federal Communications Bar Association’s judicial practice committee.</div><h4>Supreme Court Arguments</h4><ul class="li-text-orange"><li class="li-text-orange"><a href="/resources/video-audio/250121-mclaughlin-chiropractic-assoc-v-mckesson" target="_self">McLaughlin Chiropractic Assoc. v. McKesson Corp.</a> (28:16) Whether the Hobbs Act’s grant of exclusive jurisdiction to courts of appeals to review FCC orders bars collateral review of the merits of FCC orders in private-party litigation.</li><li><a href="/resources/video-audio/200113-thole-v-u-s-bank.html" target="_self">Thole v. U. S. Bank, N. A.</a> (28:15) Whether the Hobbs Act’s grant of exclusive jurisdiction to courts of appeals to review FCC orders bars collateral review of the merits of FCC orders in private-party litigation.</li><li><a href="/resources/video-audio/191203-atlantic-richfield-v-christian.html" target="_self">Atlantic Richfield Co. v. Christian</a> (28:10) Whether state-law pollution clean-up remedies are barred by CERCLA.</li><li><a href="/resources/video-audio/140423-cts-corp-waldburger.html" target="_self">CTS Corp. v. Waldburger</a> (16:22) Whether the U.S. Court of Appeals for the Fourth Circuit correctly interpreted CERCLA to apply to statutes of repose as well as to statutes of limitations.</li><li><a href="/resources/video-audio/140122-abramski-v-united-states.html" target="_self">Abramski v. United States</a> (26:01) Involving the materiality of a false statement made when purchasing a firearm.</li><li><a href="/resources/video-audio/131113-fernandez-california.html" target="_self">Fernandez v. California</a> (42:27) 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><li><a href="/resources/video-audio/121031-florida-harris.html" target="_self">Florida v. Harris</a> (16:55) 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><li><a href="/resources/video-audio/130320-horne-department-agriculture.html" target="_self">Horne v. Department of Agriculture</a> (26:50) Involving jurisdictional requirements for Takings Clause claims.</li><li><a href="/resources/video-audio/121127-us-airways-inc-mccutchen.html" target="_self">US Airways v. McCutchen</a> (21:18) Involving the limits on equitable relief available in suits against ERISA plans by beneficiaries and participants.</li><li><a href="http://www.mofo.com/resources/video-audio/111011-pacific-operators-offshore-valladolid.html">Pacific Operators Offshore v. Valladolid</a> (25:36) Involving the territorial limits on compensation available under the Outer Continental Shelf Lands Act.</li><li><a href="/resources/video-audio/120111-roberts-v-sea-land-services.html" target="_self">Roberts v. Sea-Land Services</a> (27:53) Involving benefit calculations under the Longshore and Harbor Workers’ Compensation Act.</li><li><a href="/resources/video-audio/110322-borough-duryea-guarnieri.html" target="_self">Borough of Duryea v. Guarnieri</a> (19:16) 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><li><a href="/resources/video-audio/101208-chase-bank-usa-mccoy.html" target="_self">Chase Bank USA v. McCoy</a> (17:23) 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 class="li-text-orange"><li><a href="/resources/video-audio/250318-divx-v-harman-int-l" target="_self">DivX v. Harman Int’l </a>(2:13:08) (New York Appellate Division, First Department) Secured victory on all appeal and cross-appeal issues in commercial dispute.</li><li class="li-text-orange"><a href="/resources/video-audio/231005-klin-v-cloudera-inc" target="_self">Klin v. Cloudera, Inc.</a> (12:34) (9th Cir.) Secured affirmance of dismissal of a securities fraud suit for failure to allege falsity.</li><li><a href="/resources/video-audio/221013-wamai-v-industrial-bank-of-korea" target="_self">Wamai v. Industrial Bank of Korea</a> (10:51) (2d Cir.) Secured affirmance of forum non conveniens dismissal of fraudulent conveyance claims against foreign bank.</li><li><a href="/resources/video-audio/211210-andrew-cohen-v-apple-inc" target="_self">Cohen v. Apple Inc.</a> (19:10) (9th Cir.) Successfully defended dismissal of state-law claims as preempted by the Communications Act.</li><li><a href="/resources/video-audio/210901-veroblue-farms-usa-inc-v-canaccord-genuity-llc" target="_self">VeroBlue Farms USA Inc. v. Canaccord Genuity LLC</a> (14:17) (2d Cir.) Successfully defended dismissal of fraud claim against investment bank.</li><li><a href="https://www2.ca3.uscourts.gov/oralargument/audio/22-1379_22-1380_McLarenv.UPS.mp3" target="_blank">McLaren v. The UPS Store Inc.</a> (0:41 & 46:04) (3d Cir.) Secured reversal of an order remanding cases to state court.</li><li><a href="/resources/video-audio/211030-cho-v-blackberry-ltd.html" target="_self">Cho et al. v. BlackBerry Limited et al.</a> (16:12) (2d Cir.) 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. (35:34) (Massachusetts Supreme Judicial Court) Secured win on question certified by a federal district court on the meaning of Massachusetts notary statutes.</li><li><a href="/resources/video-audio/180705-firefighters-retirement-consulting-services-group.html" target="_self">Firefighters’ Retirement System, et al. v. Consulting Services Group</a> (15:34) (5th Cir.) Secured win on question certified by a federal district court on the meaning of Massachusetts notary statutes.</li><li><a href="/resources/video-audio/190418-altayyar-v-etsy.html" target="_self">Altayyar v. Etsy, Inc.</a> (08:42) (2d Cir.) Secured dismissal of a securities fraud case.</li><li><a href="/resources/video-audio/180112-raytheon-company-indigo-systems-corporation.html" target="_self">Raytheon Company v. Indigo Systems Corporation</a> (12:49) (Fed. Cir.) Defeated an attempt to upend a jury verdict of no liability in a long-running trade secrets case.</li><li><a href="/resources/video-audio/190102-first-advantage-v-lexisnexis.html" target="_self">First Advantage LNS, Inc., et al. v. LexisNexis Risk Solutions, Inc.</a> (1:29:50) (New York Appellate Division, First Department) Secured a victory for LexisNexis in a significant contract dispute.</li><li><a href="/resources/video-audio/171207-nikon-corporation-asml-us.html" target="_self">Nikon Corporation v. ASML US, Inc.</a> (33:50) (9th Cir.) Secured U.S. discovery for use in foreign patent litigation.</li><li><a href="/resources/video-audio/161020-odunbaku-v-odunbaku.html" target="_self">Odunbaku v. Odunbaku</a> (00:11) (New York Court of Appeals) 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><a href="/resources/video-audio/160719-helping-hand-tool-environmental-protection.html" target="_self">Helping Hand Tools et al. v. U.S. Environmental Protection Agency et al.</a> (32:09) (9th Cir.) Secured a victory in a case that set an important precedent for regulation of greenhouse gas emissions from combustion of renewable biofuels.</li><li><a href="/resources/video-audio/160506-immersion-corp-htc-corp.html" target="_self">Immersion Corp. v. HTC Corp.</a> (00:07) (Fed. Cir.) Securing a reversal of district court decision, 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 a reversal of default judgment against Bank of America.</li><li><a href="/resources/video-audio/150915-gregory-berry-lexisnexis-risk-information.html" target="_self">Gregory Berry v. LexisNexis Risk & Information</a> (28:30) (4th Cir.) Defended the settlement of one of the largest class actions ever certified from objector challenges.</li><li><a href="/resources/video-audio/150325-gnc-corporation-marketing-sales-practices.html" target="_self">In re: GNC Corporation; Triflex Products Marketing and Sales Practices Litigation</a> (15:42) (4th Cir.) Secured dismissal of a false-labeling claim against GNC.</li><li><a href="/resources/video-audio/091016-core-communications-inc-fcc.html" target="_self">Core Communications, Inc. v. FCC</a> (23:01) (D.C. Cir.) Successfully defended FCC’s intercarrier compensation rules.</li><li><a href="/resources/video-audio/080313-star-wireless-llc-fcc.html" target="_self">Star Wireless LLC v. FCC, et al.</a> (16:40) (D.C. Cir.) Defeated a challenge to an imposition of monetary forfeiture for violation of wireless auction anti-collusion rules.</li></ul>

Joseph Palmore

Partner

Alison Hung is an associate in Morrison Foerster’s Appellate and Supreme Court practice.Before joining the firm, Alison clerked for the Honorable Susan L. Carney of the U.S. Court of Appeals for the Second Circuit and the Honorable John G. Koeltl of the U.S. District Court for the Southern District of New York. Prior to her clerkships, she worked as a litigation associate at a global law firm.Alison earned her J.D. at Columbia Law School, where she served as the Executive Articles Editor for the Columbia Law Review and received various academic honors, including the Ruth Bader Ginsburg Prize for outstanding academic achievement and the Wilfred Feinberg Prize for excellence in an area related to the work of the federal courts. She was also a finalist in Columbia’s Harlan Fiske Stone Moot Court Competition, where she won the prize for best brief.During law school, Alison interned with the Department of Justice’s Civil Fraud Section and the New York State Attorney General’s Office. She received her B.A. with honors in English Language and Literature from the University of Chicago.Alison is admitted to practice in New York and the District of Columbia.

Alison Hung

Associate

Appellate + Supreme Court

New York Law Journal