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Several “hot” cases are up for oral argument today before the 3rd U.S. Circuit Court of Appeals. The morning’s roster of arguments, beginning at 10 a.m., offers a perfect opportunity to watch the court in action with a panel that consists of Judges Dolores K. Sloviter, Jane R. Roth and Theodore A. McKee. In Buskirk v. Apollo Metals, the court will be tackling an important question under the Americans with Disabilities Act that has divided the federal circuits — whether a “regarded as disabled” plaintiff has the right to sue over the denial of a reasonable accommodation. In In Re: Pillowtex Inc., the court must decide whether a corporation entering bankruptcy can retain a law firm that was paid more than $2 million for legal work in the previous year. The appeal was brought by the U.S. Trustee’s Office, which lodged an objection and argued that the firm suffered from a conflict of interest. And in United States v. Freeman, the panel must decide whether a trial judge went too far where the sentence for a child pornography conviction included a post-release condition that prohibits the defendant from owning a computer or ever using an outside computer to access the Internet. ADA CASE In Buskirk, the 3rd Circuit must finally answer a question it has effectively dodged in two previous cases, albeit with strong hints offered in dicta. Williard Buskirk was hired as a laborer in 1981, but suffered a work-related injury in 1996 that left him unable to perform his previous job. In his suit, Buskirk conceded that he did not meet the ADA’s definition of “disabled,” but instead claimed that Apollo “regarded” him as disabled. As a result, Buskirk claimed the company violated the ADA when it failed to accommodate him by considering him for several posts that became vacant. The suit went to trial, but U.S. District Judge J. Curtis Joyner dismissed the case soon after the plaintiff rested, holding that, as a matter of law, a “regarded as” plaintiff is not entitled to an accommodation. On appeal, Buskirk’s lawyers, Thomas More Holland and Jeffrey Campolongo, argue Joyner erred in dismissing the suit because the purpose of the ADA is to punish employers for making assumptions based on stereotypes that are not truly indicative of a worker’s abilities. Campolongo, who will argue the case today, will be urging the 3rd Circuit to follow a 1st Circuit decision that allows “regarded as” plaintiffs to seek reasonable accommodations. But Apollo’s lawyer, Larry J. Rappoport of Reading, Pa.-based Stevens & Lee, argues that the 3rd Circuit has already suggested in dicta that it will follow the lead of the 5th, 6th and 8th circuits — and the “overwhelming majority” of the federal district courts — which have all held that a “regarded as” plaintiff cannot sue for a reasonable accommodation. In Deane v. Pocono Medical Center, Rappoport notes, the 3rd Circuit said there was “considerable force” to the argument that a plaintiff who is merely regarded as disabled cannot claim to be entitled to an accommodation for a disability he himself concedes does not exist. Rappoport says the Deane court warned that if such claims were allowed, healthy employees could demand changes in their work environments based on nothing more than the misperceptions of their employers. CORPORATE BANKRUPTCY In Pillowtex, the 3rd Circuit must decide the standards for disqualifying a law firm that is accused of suffering from a conflict of interest due to its receipt of fees in the months leading up to a massive bankruptcy filing. Pillowtex first hired Jones Day Reavis & Pogue in 1996 and used the firm to handle corporate, financial, intellectual property and employee benefit issues. In November 2000, Pillowtex filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code. Jones Day lawyers had helped to prepare the initial filings which included a request that Pillowtex be authorized to retain Jones Day as bankruptcy counsel. The Pillowtex bankruptcy involved substantial debts — more than $1 billion in trade debt; $750 million in senior secured debt; and $400 million in subordinated debt. In its request to hire Jones Day, the company stated that its long-term relationship with the firm gave the Jones Day lawyers “particular insights” into the company’s needs and familiarity with its debt structure. But the U.S. trustee objected, pointing to Pillowtex’s disclosures about recent payments of fees to Jones Day. In the year leading up to the bankruptcy filing, Pillowtex had paid Jones Day more than $2.5 million in fees — including nearly $1 million that was paid in the 90 days before the filing. Just four days before the bankruptcy filing, Pillowtex had paid Jones Day about $778,000; and just one day prior to the filing, it paid the firm another $300,000 as a retainer for its work in the bankruptcy case. Lawyers in the U.S. Trustee’s Office objected to hiring Jones Day as bankruptcy counsel, arguing that at least some of the payments made within the 90-day “preference period” were avoidable as preferential transfers. As a result, the U.S. trustee said, Jones Day was not a “disinterested person” and therefore could not be hired to represent the company in bankruptcy. The bankruptcy judge overruled the objection and ordered that Jones Day could be retained subject to certain conditions. The court held that if it were determined in the future that Jones Day had received one or more avoidable preferential transfers, the firm would be required to promptly return the funds to the estate and waive any unsecured claim. On appeal, the U.S. trustee argues that the bankruptcy judge erred because “a law firm that receives a preferential transfer has an actual conflict of interest with the debtor that disqualifies the firm from representing the debtor in bankruptcy proceedings.” But Jones Day argues that there was only ever a “potential” conflict of interest and that the U.S. trustee is simply dissatisfied with the lower court’s findings. “The mere fact that the U.S. trustee has alleged that Jones Day received preferential payments does not by itself create an actual conflict of interest mandating disqualification,” the firm argued in its appellate brief. “If this contention was correct, any law firm would be disqualified as having an actual conflict of interest whenever any party alleged that the firm had received a preferential payment, regardless of the merits,” the brief says. PEDOPHILE SENTENCING In Freeman, the court must consider two aspects of a sentence imposed on a man who pleaded guilty to charges of possessing images of children engaged in sexually explicit activities. Robb Walker Freeman, 63, is a diagnosed pedophile who claims that he has not engaged in any inappropriate touching of a child since 1985 when he received treatment at Johns Hopkins Medical Center in Baltimore. Freeman was snagged in a sting operation in 1999 when one of his fellow patients lured him to Delaware County, Pa., to meet with an undercover FBI agent. In the meeting, Freeman showed the agent several child pornography photos and then copied several of the agent’s photos onto his own laptop computer. Senior U.S. District Judge Charles R. Weiner ruled that the guidelines for Freeman’s sentence understated his criminal record since he had admitted to molesting more than 50 children prior to his treatment. As a result, Weiner increased the criminal history score from Category I to Category III, and sentenced Freeman to 70 months in prison. Weiner also ordered that upon his release from prison, Freeman will be prohibited during the next five years from having any computer in his residence or from using any online service. On appeal, Assistant Federal Defender Jonathan D. Libby argues that Weiner erred because he never explained why it was necessary to increase the criminal history category by two levels. Freeman’s two convictions were both outdated for purposes of enhancing his sentence, Libby argues, and both preceded his successful treatment. Weiner also failed to explain why it was necessary to prohibit Freeman from owning a computer, Libby argues. In his brief, Libby urged the appellate court to vacate the special conditions, arguing that prohibiting Freeman from owning a computer is “a far greater deprivation of liberty than is reasonably necessary to protect the public.” Assistant U.S. Attorney Louis D. Lappen will argue the case for the government.

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