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We appellate lawyers are sometimes thought of as real Chicken Littles — follow the appellate rules or the sky will fall on you.  Well, the Third Circuit Court of Appeals just demonstrated the wisdom of that cautionary advice.

In Lehman Brothers Holdings, Inc. v. Gateway Funding Diversified Mortgage Services, L.P., No. 14-1119 (3rd Cir. March 23, 2015), the appellant (Gateway) challenged the district court’s finding that Gateway abandoned its lead argument in the district court by not raising it during oral argument on summary judgment. Indeed, Gateway went so far as to assert that there was “no record” to support the district court’s finding that Gateway abandoned its argument.

The Third Circuit disagreed.  It found that not only was there a record of the telephonic hearing, but that Gateway violated Rule 10 of the Federal Rules of Appellate Procedure when it failed to order the transcript of the hearing and include it in the record on appeal.  The Court noted that “Gateway’s Rule 10 violation at best shows a remarkable lack of diligence and at worst indicates an intent to deceive this Court.”  The Court therefore held that Gateway forfeited its claim on appeal.

So remember:  follow the appellate rules or suffer the consequences.

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