Kimberly A. Mello

Experience: Business Litigation/Media Law: Representing a real estate firm in the Second Circuit in an Administrative Procedure Act case involving the Small Business Administration's denial of forgiveness of Paycheck Protection Program loans issued during the COVID-19 pandemic.; Representing a defendant in the Virgin Islands Supreme Court in an employment-related class action lawsuit. The trial court entered a dismissal order for lack of jurisdiction after concluding that the plaintiff failed to properly serve the defendant with process.; Obtained affirmance of dismissal of complaint in a high-profile defamation case filed by pro golfer Patrick Reed, who sought almost $1 billion in damages against multiple defendants arising from the media's coverage of a dispute between LIV Golf and the PGA tour.; Represented trustee in the Mississippi Supreme Court in an appeal involving a default on tax-exempt bonds in the aggregate principal amount of $22 million issued by a public improvement district to acquire land and finance capital infrastructure improvements for a mixed-use development project. The case resolved prior to oral argument.; Obtained affirmance of a final judgment entered in favor of an insurer following a jury trial. The jury found the defendant materially breached its post-loss duties and intentionally misrepresented or concealed material facts during the investigation of its insurance claim regarding Hurricane Irma-related property damage to its hotel.; Obtained affirmance of summary judgment entered in favor of the defendant in a class action brought under the Truth In Lending Act.; Represented financial institution in an appeal of an eight-figure summary judgment entered in its favor. The case was filed by a syndicated bank lending group against a blind participant to recover a multimillion-dollar setoff exercised against the bank lending group's borrower. The case resolved prior to oral argument.; Obtained affirmance of a summary judgment in an action seeking damages in excess of $20 million based on claims arising out of an option to purchase real estate.; Obtained affirmance of final judgment following a jury trial in a case involving $22 million in damages arising from a grant of exclusive rights to market and distribute plaintiff's television programming.; Environmental & Toxic Tort Litigation: Obtained affirmance of order dismissing class action for damages allegedly resulting from a release of approximately 65 million gallons of process water into Hillsborough Bay during Hurricane Frances. The court held that there was not an independent duty to protect plaintiffs' purely economic interests and plaintiffs did not have a private statutory cause of action for damages absent a possessory interest in the property allegedly damaged by the pollution. On further review, the Florida Supreme Court held that only the commercial fishermen, but not restaurants, bait and tackle stores, or other plaintiffs, could proceed with their claims, thereby limiting the putative class of persons on remand.; Briefed summary judgment motion that resulted in an order reducing damages by approximately $20 million. The district court found that, under the economic waste doctrine, plaintiffs were not entitled to restoration damages for alleged improper reclamation of formerly mined lands and, instead, were limited to diminution in value.; Briefed summary judgment motion granted by district court in a federal court challenge to phosphate mining filed by environmental groups challenging a Section 404 Clean Water Act permit issued by the Army Corps of Engineers.; Briefed numerous motions in multidistrict litigation involving methyl tertiary butyl-ether (MTBE) in which injunctive relief sought in Florida alone exceeded $100 million. Class certification was denied.; Intellectual Property Litigation: Obtained affirmance of summary judgment in a federal copyright action involving a dispute over copyright ownership in a telenovela and claims of copyright infringement.; Obtained dismissal of appeal challenging a sanctions award for discovery violations in a federal copyright action. The Eleventh Circuit concluded that the collateral order doctrine does not authorize immediate review of sanctions ordered under Rule 37 of the Federal Rules of Civil Procedure.; Obtained dismissal of appeal in federal copyright action involving a dispute over who controlled the litigation on behalf of LaTele Television. The Eleventh Circuit concluded that the district court (1) correctly found that the board appointed by a Venezuelan criminal court to manage LaTele and its counsel was the proper representative of LaTele Television and had the right to select counsel; and (2) properly removed the ousted president's counsel from representing the company in the litigation. Based on these findings, the court concluded that the ousted president's counsel was not authorized to file the appeal and the notice of appeal was thus rendered nugatory.; Financial Services Litigation: Obtained affirmance of district court's order dismissing complaint with prejudice based on plaintiff's failure to allege actual or statutory damages under the Real Estate Settlement Procedures Act.; Obtained affirmance of summary judgment in a Fair Credit Reporting Act case based on claim that financial institution inaccurately reported information regarding plaintiff's mortgage account.; Obtained affirmance of the district court's orders dismissing complaint with prejudice and denying leave to amend in Real Estate Settlement Procedures Act case based on allegations that financial institution did not properly respond to a request for information.; Obtained reversal of an involuntary dismissal following a non-jury trial. The court held that the trial court made multiple erroneous rulings, including its findings that the note was not negotiable, the trustee lacked standing, the servicer's business records were inadmissible, and the trustee had acted with unclean hands. The case was remanded to the trial court with directions to enter a final judgment in favor of the trustee.; Obtained reversal of an involuntary dismissal following a non-jury trial in a commercial foreclosure action involving a default on an over $1 million loan secured to construct an apartment complex.; Pharmaceutical and Medical Device Litigation: Obtained affirmance of dismissal of negligence and loss of consortium claims in a case involving purported damages due to alleged inadequate labelling of a prosthetic aortic heart valve.; Briefed complex motions in pharmaceutical and medical device litigation in state and federal courts involving claims for, among others, failure to warn, design defects, and manufacturing defects.