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Commercial Contracts

We have significant trial and appellate experience litigating commercial-contract disputes at the Department of Justice and FDIC. At FDIC, Jerry litigated contract matters related to the affairs of closed banks and disputes related to FDIC's repudiation of bank contracts as part of the bank resolution process. He also argued appeals related to contracts between FDIC and banks that acquire the assets and liabilities of a failed bank.

At the Department of Justice, Jerry gained significant trial and appellate experience trying and handling appeals in high stakes, breach-of-contract suits filed in the U.S. Court of Federal Claims and later appealed to the Federal Circuit. These trials and appeals involved complex lost profits, restitution, fraud, and prior-material breach issues related to Congress's abrogation in the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (FIRREA) of regulatory capital contracts with banks that acquired insolvent thrifts during the S&L crisis, as part of the overhaul of banking law.

FLAGLER INVESTMENT MARIETTA

Flagler Investment Marietta, LLC v. Multibank 2009—1 CRE Venture, LLC, 663 Fed. Appx. 747 (11th Cir. 2015) (lead counsel for FDIC) (in a suit brought by Flagler against Integrity Bank for breach of a loan agreement regarding a loan made by a failed bank that was transferred by FDIC as receiver to Integrity, the district […]

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FDIC V. FIRST AMERICAN TITLE INS. CO.

FDIC v. First American Title Ins. Co., 611 Fed. Appx. 522 (11th Cir. 2015) (argued for FDIC) (holding that (i) FDIC, as receiver, retained under the terms of the purchase and assumption agreement (P&A Agreement) all claims related to acts or omissions that caused a loss to the bank, (ii) FDIC could bring a breach-of-contract […]

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JPMORGAN CHASE BANK, N.A. V. FIRST AMERICAN TITLE INS. CO.

JPMorgan Chase Bank, N.A. v. First American Title Ins. Co., 750 F.3d 573 (6th Cir. 2014) (argued for FDIC) (holding that FDIC, as receiver, could bring a breach-of-contract action against a title insurance company based upon the terms of a closing protection letter (CPL) issued by the company whereby it agreed to indemnify the bank […]

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FIRST FED. SAV. AND LOAN ASSN. OF ROCHESTER V. UNITED STATES

First Fed. Sav. and Loan Assn. of Rochester v. United States, 88 Fed. Cl. 572 (2009) (lead trial counsel for United States) (related to United States v. Winstar Corp., 518 U.S. 839 (1996)) (after trial in which the bank sought to recover approximately $400 million in lost-profit damages, awarding the bank $85 million on its […]

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LONG ISLAND SAVINGS BANK, FSB V. UNITED STATES

Long Island Savings Bank, FSB v. United States, 476 F.3d 917 (Fed. Cir. 2007) (lead counsel for the United States), acting en banc returning case to original panel for revision, rev'd, 503 F.3d 1234 (Fed. Cir. 2007) (of counsel for the United States) (Winstar-related) (vacating a $435 million judgment for lost profits in the form […]

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SYSTEMS PLUS, INC. V. UNITED STATES

Systems Plus, Inc. v. United States, 68 Fed. Cl. 206 (2005) (lead counsel for the United States) (denying a post-award bid protester's request for declaratory and injunctive relief).

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BANK UNITED OF TEXAS FSB V. UNITED STATES

Bank United of Texas FSB v. United States, 50 Fed. Cl. 645 (2001) (member of the Justice trial team) (Winstar-related) (rejecting a bank's claim for $558 million in lost profits related to FIRREA's abrogation of the regulatory capital provision in an assistance agreement with the FHLBB and awarding, instead, $8.8 million related to the costs […]

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COLUMBIA FIRST BANK, FSB V. UNITED STATES

Columbia First Bank, FSB v. United States, 60 Fed. Cl. 97 (2004) (member of the Justice trial team) (Winstar-related) (in a breach-of-contract suit brought by a bank for lost profits based upon Congress's abrogation in FIRREA of the regulatory capital provisions of an assistance agreement with the FHLBB under which the bank merged with an […]

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LONG ISLAND SAV. BANK, FSB V. UNITED STATES

Long Island Sav. Bank, FSB v. United States, 54 Fed. Cl. 607 (2002) and Long Island Sav. Bank, FSB v. United States, 67 Fed. Cl. 616 (2005) (lead trial counsel for the United States) (Winstar-related) (in a breach-of-contract suit brought by a bank based upon Congress's abrogation in FIRREA of the regulatory capital provisions of […]

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FIRST BANK NAT'L ASSN. V. FDIC

First Bank Nat. Assn. v. FDIC, 79 F.3d 362 (3d Cir. 1996) (argued for FDIC) (reversing judgment against FDIC in a case involving FDIC-Receiver's repudiation of a bank lease).

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LAWSON V. FDIC

Lawson v. FDIC, 3 F.3d 11 (1st Cir. 1993) (argued for FDIC) (holding that the FDIC implicitly repudiated the above-market interest rates in a failed bank's certificates of deposit (CDs) when it transferred the CDs to the acquiring bank under the terms of a P&A Agreement which empowered the acquiring bank to substitute the prevailing […]

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