Since what I write here is collected in a somewhat permanent manner, it's nice to have a prediction come true. Friday, the 9th Circuit helped me on that score by announcing it was granting en banc consideration of Jespersen v. Harrah's Operating Company, Inc.
So the panel decision, upholding the make up requirement, which I reported on here
is now history, unless adopted by the en banc
court. (Don't hold your breath.)
Actually, I am only halfway home on the prediction, as what I said was, "this case is unlikely to go quietly into the night. Look for en banc consideration and ultimately certiorari on this one."