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Brian  Kantar
 

Brian Kantar

Member West Orange, NJ   New York, NY  

Brian Kantar’s practice is concentrated in commercial litigation, with a focus on fidelity and surety, construction and bankruptcy matters.  Brian regularly represents surety companies, contractors and developers in a wide variety of contract disputes, performance and payment bond claims, affirmative claims, loss recovery, bankruptcy issues and contractor workouts. While Brian’s practice is primarily based in New York and New Jersey, Brian regularly collaborates with his surety clients on projects and claims both on a national and international basis.

Brian is regarded as a thought leader who frequently authors and presents on topics that are both timely and relevant to the surety industry. Brian has presented at numerous conferences, including the American Bar Association Fidelity & Surety Law Committee’s Mid-Winter Meeting and Spring Meeting, the Surety Claims Institute Annual Meeting, the Pearlman Conference, the Northeast Surety & Fidelity Claims Conference, and has presented virtually to the National Association of Surety Bond Producers. Brian is also often asked to present in-house seminars on emerging legal issues and trends to surety claims departments. Brian served as co-chair of the Surety Program at the 2020 ABA FSLC Fidelity & Surety Law Committee’s Mid-Winter Meeting and has been appointed to serve as program chair of the Surety Claims Institute’s Annual Meeting in 2023 and 2024. Brian serves as Managing Editor of the Surety Claims Institute’s Newsletter in which he also authors a highly regarded surety case update. Brian is a Vice-Chair of the ABA Fidelity & Surety Law Committee.

In 2005-2006, Brian served as a law clerk to Judge Ross R. Anzaldi, presiding judge of the Civil Division, Superior Court of New Jersey, Union County. He graduated in 2001, summa cum laude, from Hofstra University, where he was elected to Phi Beta Kappa. He earned his J.D. magna cum laude from Seton Hall Law School, in 2005, where he was elected to the Order of the Coif.  While in law school, Brian served as chairman of the Honor Council and interned for Judge Mary C. Jacobson of the Superior Court of New Jersey, Civil Division, Essex County.

 
Education
  • Seton Hall University School of Law (J.D., magna cum laude, 2005)
  • Hofstra University (B.A., summa cum laude, 2001)
Admissions
  • New Jersey
  • New York
  • Pennsylvania
  • U.S. District Court, District of New Jersey
  • U.S. District Court, Eastern, Northern and Southern Districts of New York
  • Representation of three co-sureties’ interests at a five-week bench trial in the Southern District of New York involving a contractual dispute arising from an agreement between Lockheed Martin and the MTA for the design, development and installation of an integrated electronic security system for New York City's public transportation system, with damages estimated at more than $130 million.  Brian also represented the co-sureties’ interests in the initial investigation of the claim and throughout the ensuing five-year litigation.
  • Collaborated with a number of sureties to prepare compliance programs and associated training with respect to bonding set-aside contractors.
  • Lead counsel for a surety in its takeover and completion of a $31 million rehabilitation project for two subway stations in Brooklyn, NY.  Brian supervised the surety’s completion efforts, was responsible for the negotiation of several change orders with the owner and subcontractors, and the prosecution and defense of various claims.
  • Lead counsel for a surety in connection with the Chapter 11 bankruptcy proceedings of its obligee, a heavy construction contractor, the surety’s subsequent takeover and workout of the bankrupt contractor’s 18 public improvement projects with various New York City agencies, together with related subcontractor and indemnity issues. 
  • Lead counsel for a surety with respect to its financing of a general contractor’s completion of more than 10 public improvement projects with various New York City agencies, including representation of the surety in connection with various subcontractor and affirmative claims.
  • Obtained a favorable result on summary judgment in the precedential decision of Iron Branch Associates, LP v. Hartford Fire Insurance Company, ---F. Supp. 3d ----, 2021 WL 4129116 (D. Del. 2021). The obligee had argued that, under an AIA A312 Performance Bond, the surety was liable for damages the obligee had waived as against its principal in the bonded contract. The court found that the A312 Performance expressly incorporated the common law legal axiom that the surety’s liability cannot be greater than that of its principal and dismissed the obligee’s claims to the extent they were waived as to the surety’s principal.
  • Co-counsel to several sureties in connection with the Chapter 11 and Chapter 15 bankruptcy proceedings commenced by Abengoa, S.A., and its domestic and international affiliates. The representation included an appearance on behalf of a surety client at Abengoa’s insolvency proceedings in Seville, Spain, and frequent coordination with Spanish counsel to coordinate efforts in Spain and the U.S.
  • Represented surety which had issued a $10.8 million workers compensation bond on behalf of a school bus operator in both Assignment for the Benefit of Creditor and Chapter 11 bankruptcy proceedings. The representation included assisting the surety with its actuarial analysis of the surety’s exposure, negotiating the terms of a settlement with the workers compensation board, and negotiating the surety’s fixed claim in bankruptcy. The surety later served as a representative of the debtors’ creditors committee (and, after plan confirmation, the oversight committee) and has secured significant recovery of its losses from the debtors’ estate.
  • Representation of surety that had issued a vessel construction bond on behalf of a shipbuilding contractor that ultimately filed for bankruptcy. The obligee contended that the bond covered the contractor’s obligations for several additional vessels beyond those which were covered by the express terms of the contract documents and the bond. The surety resolved the matter for a fraction of the obligee’s claim at mediation.
  • Negotiated a favorable resolution of a claim brought by the New York State Commissioner of Labor against a surety under Labor Law 220-g. The Commissioner sought to impose liability against the surety for wage underpayments, together with interest extending over a 13-year period. The surety filed a motion to dismiss on standing grounds. The Commissioner later agreed to significantly reduce the scope of its claim and waived substantially all of its claim for interest.
  • Represented a surety claims professional in proceedings before the IRS in which the IRS sought to hold the claims professional personally liable for the surety’s principal’s failure to remit certain tax payments. The IRS contended that the surety claims professional directed the principal to divert funds to other creditors. The claims were dismissed after the hearing officer determined that the funds belonged to the surety based on the surety’s subrogation and pre-existing assignment rights. The IRS also agreed to return several hundred thousand dollars of funds it has improperly levied upon in light of the surety’s superior rights.
  • Successful prosecution of a fraudulent conveyance action against surety indemnitors who transferred their assets to out-of-state corporations in order to render themselves judgment proof.  The indemnitors were required to reverse their fraudulent transfers of assets and the surety ultimately recovered approximately $600,000, representing the entirety of the surety’s judgment 
  • Successfully moved for summary judgment in the precedential decision of RLI Insurance Company v. Athan Contracting Corp., 667 F.Supp.2d 229 (E.D.N.Y. 2009).  The indemnitors had argued that they did not authorize the submission of a bid or entry into a contract for the subject public construction project and, therefore, were not responsible to indemnify the surety for its losses.  The court found that the conduct of the principal and its president ratified the alleged unauthorized actions and required that they honor their indemnity obligations to the surety.
  • Representation of a subcontractor’s surety in an arbitration involving the rehabilitation of a federal courthouse in Galveston, Texas. The general contractor/obligee defaulted the subcontractor and unilaterally attended to the completion of the work, depriving the surety of its rights under the subject performance bond.  Despite the assertion of a multi-million dollar claim, the surety was able to resolve the matter for a fraction of its potential exposure.
  • Recovery of $400,000 in contract proceeds from the bankruptcy estate of the surety’s principal pursuant to the surety’s equitable right of subrogation.
  • Negotiated for the posting of 100% collateral by the surety’s principal in a Chapter 11 bankruptcy, in exchange for the surety’s agreement not to cancel customs bonds.
  • Representation of a surety on claims arising from nearly two dozen fiduciary bonds issued on behalf of an attorney whose paralegal admitted to misappropriating funds entrusted to the attorney. The surety negotiated a favorable settlement of the bond claims, which included a substantial contribution from the attorney’s malpractice carrier. The surety also achieved a substantial recovery from its principal and the paralegal.
 
  • New Leaders of the Bar, New Jersey Law Journal (2018)
  • New Jersey Super Lawyers - Rising Stars, Surety, Business Litigation, Bankruptcy: Business (2011-2019)
  • Martindale-Hubbell AV® Rating

Award Methodology

  • American Bar Association, Tort Trial & Insurance Practice Section - Fidelity & Surety Law Committee, Vice Chair
  • Surety Claims Institute
  • Philadelphia Surety Claims Association
  • Hispanic Bar Association of New Jersey
  • Essex County Bar Association
  • New Jersey State Bar Association
  • New York State Bar Association