Arthrex v. Smith & Newman, Inc., et al., 941 F.3d 1320 (Fed. Cir. 2019), because the appellant, Vivint, had forfeited its Appointments Clause challenge by not raising it in an earlier appeal of the case to the Federal Circuit where Vivint was also an appellant.
Vivint v. Alarm.com Inc., No. 2019-2438, 2019-2439 (Fed. Cir. Apr. 13, 2021).
Arthrex decision was not a change in law sufficient to create an exception to that forfeiture.
Vivint adds to a number of earlier Federal Circuit holdings finding parties had forfeited application of
Arthrex. It also reiterates that a party must raise an Appointment Clause challenge, if at all, before the first court who can provide it relief.