In Lehman Bros. Holdings Inc. v. Gateway Funding Diversified Mortgage Servs. LP, the Court of Appeals for the Third Circuit issued a warning about failures of parties and their counsel to follow the appellate rules. Gateway appealed from a district court's grant of partial summary judgment to Lehman Bros. in a dispute about an indemnification agreement, arguing that the district court had erred in holding that Gateway abandoned a contractual defense to liability during a telephonic oral argument. Gateway denied abandoning the defense and claimed there was no record to support Lehman's claim to the contrary. In fact, however, the oral argument had been transcribed and Gateway had failed to file a copy of the transcript with the court, in violation of Federal Appellate Rule 10(b)'s requirement that "the appellant must ... order ... a transcript of [relevant] parts of the proceedings" and "include in the record a transcript of all [relevant] evidence."
When this failure was raised before the appellate court, Gateway claimed in its defense that it believed the oral argument had not been transcribed. Gateway also pointed out that its error was corrected when Lehman filed the transcript with its own appellate brief. But the Third Circuit described Gateway's argument as "cavalier." Treating the case as "an opportunity to emphasize the importance of following the rules," the court held that Gateway's appeal from the summary judgment decision was "forfeited" by its failure to com-ply with Rule 10, explaining that Gateway's violation "at best shows a remarkable lack of diligence and at worst indicates an intent to deceive this Court."
The disposition of this case sends a strong message for all types of appeals, including those relating to aviation, and evidences why it is sometimes necessary to use experienced appellate counsel for important appeals, even if it means replacing trial counsel. Lehman Bros. Holdings Inc. v. Gateway Funding Diversified Mortgage Servs. LP, 2015 U.S. App. Lexis 7536 (3d Cir., May 7, 2015).
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