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Kevin C. Mortimer

Associate

[email protected]

+1.617.348.1754

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Kevin engages in an expansive array of litigation matters, including construction, real estate, securities, class action, insurance, and complex business litigation. He represents and counsels individuals and businesses, both large and small, in all stages of litigation, arbitration, mediation, negotiations, commercial disputes, and contracting. Kevin constantly strives to provide his clients with an efficient, tireless and responsive approach aimed towards avoiding litigation when possible.

With prior experience as a project management operational consultant at a boutique mechanical engineering subcontracting firm and a large commercial real estate company, Kevin provides a well-informed perspective for practice groups concentrated on construction and real estate litigation. Moreover, Kevin has extensive experience in matters concerning institutional class action recovery, securities litigation, commercial litigation, and complex insurance coverage analysis and disputes.

Kevin is also actively engaged in Mintz’s pro bono efforts. As Mintz’s chair of the “Lawyer for the Day” pro bono program at Boston’s Housing Court, Kevin provides legal representation in civil matters to low-income tenants seeking resolution of disputes with their landlords.

While in law school, Kevin held the position of Online Editor of the New England Law Review, and was three-time recipient of both the Dean’s Scholarship and the New England Scholar Award. Kevin also ranked highest among his classmates in the courses of Labor Law, Negotiation, Massachusetts Practice and Procedure, Family Law, and Commercial Real Estate Capstone. Prior to law school, Kevin attended Trinity College, where he captained the NESCAC champion Trinity College Baseball Team and graduated as a member of Pi Gamma Mu International Honor Society in Social Sciences.

Outside of the office, Kevin is a regular participant in the Mintz hockey team’s weekly game, as well as a contributor to local charitable events for the armed services, and juvenile diabetes and cancer research.

Education

  • New England Law (JD, magna cum laude)
  • Trinity College (BA, Economics)

Experience

  • Represented an international theater venue operator in litigation against contractors, design professionals and a steel testing company for defective design and construction of a theater. Action initiated in state court and successfully resolved in mediation more than two years before anticipated trial date.
  • Represents owners, both large and small, in mediation and arbitration concerning construction and design defects.
  • Coordinates discovery and expert investigation and analysis in complex class action, securities, and construction litigation and alternative dispute resolution.
  • Represented an owner in defense of a claim by a commercial tenant that the facility was not SCIF compliant.
  • Represents a wide variety of individuals and commercial entities in connection with alleged violations of M.G.L. ch. 93A.
  • Coordinated discovery and trial preparation in connection with a client’s alleged violations of federal securities laws.
  • Advised clients on land use matters, including complex zoning analysis in connection with the purchase and sale of commercial real estate.

Involvement

  • Chair of Mintz’s Pro Bono Housing Court Program
  • Participant Captain for the “Lawyers, Bring Us Your Briefs Charity Drive,” providing undergarments to the homeless population of Boston (2015)
  • Member, Pi Gamma Mu International Honor Society
  • Trinity College baseball team representative, Team Impact, a nonprofit that pairs children with life-threatening diseases with local college teams (2011 – 2012)
  • Frequent contributor to local charitable events for the armed services (e.g. Boston Marine Corps Honor Run), and juvenile diabetes and cancer research (e.g. Juvenile Diabetes Research Foundation Walk for a Cure, Pan Mass Challenge, and Boston Marathon)

Recent Insights

News & Press

Viewpoints

Viewpoint General
Last week, the district court entered an order, granting CalSTRS’ motion for intervention for the limited purpose of tolling the statute of repose. While there is no longer a risk that the complaint will be dismissed (the vast majority of Plaintiffs’ claims have since survived dismissal), CalSTRS has successfully preserved its right to opt out if a class is certified. Allowing CalSTRS (and others) to use motions to intervene to toll the statute of repose rather than forcing such putative class members to choose to forego their rights or file their own opt-out action may preserve resources and encourage efficiency of the courts.
Viewpoint
Years after Plaintiffs brought a federal securities complaint against Petrobras, and more than a year after the case settled for approximately $3 billion, Judge Jed S. Rakoff of the United States District Court for the Southern District of New York ordered the unsealing of the majority of documents attached to parties’ summary judgment papers. Cornell University intends to use these documents in an arbitration in Brazil. Not only does Judge Rakoff’s decision come as an important reminder that sealing orders are not intended to last forever, but this decision also demonstrates how a motion to unseal may be used to bypass the traditional requirements of 28 U.S.C. § 1782, frequently invoked by entities seeking to use U.S. discovery in foreign proceedings.
Viewpoint General

Claimants Need Not Record Complaints to Enforce Lien Dissolution Bonds Under

May 28, 2019 | Blog | By Samuel M. Tony Starr, Kevin Mortimer

In a recent decision, the Supreme Judicial Court of Massachusetts (SJC) has held that a contractor seeking to enforce a lien dissolution bond under G.L. c. 254 § 14 need not record an attested to copy of its complaint with the Registry of Deeds. In City Electric Supply Co. v. Arch Insurance Co., the SJC vacated a decision of Norfolk Superior Court—refusing to apply the recording requirement of G.L. c. 254 § 5 to G.L. c. 254 § 14.
Viewpoint
The U.S. Supreme Court denied defendants-appellees’ petition for certiorari in Hagan v. Khoja. As set forth in our prior alert, the executives of the now-defunct biotechnology company, Orexigen, sought review of a Ninth Circuit decision, which not only created a departure from other courts in its narrow-approach to incorporation by reference and judicial notice, but according to the petition, also distinguished itself by being the first Circuit Court of Appeal to find that an issuer owes a duty to update a statement of historical fact that was accurate when made. At issue was whether Orexigen had a duty to disclose data that demonstrated interim results from an obesity drug trial were not as promising as once touted. In opposition to the petition for certiorari, respondent argued, inter alia, that “[e]ven if petitioners were correct . . . that this case implicates whether companies have a duty to update earlier statements of historical fact, the interlocutory posture of this case would make it the worst kind of vehicle for considering that question.”
Viewpoint General
The United States District Court of the District of Connecticut will soon decide whether a putative class member may intervene “for the limited purpose of tolling the statute of repose.” Statutes of repose place an outer limit on when a claim can be brought. For example, claims brought under Sections 11 and 12 of the Securities Act of 1933 are subject to a 3-year statute of repose, 15 U.S.C. § 77m, and claims brought under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 are subject to a 5-year statute of repose. 15 U.S.C. § 1658. Less than two-years ago, the U.S. Supreme Court held that unlike statutes of limitations, which may be tolled by the pendency of a class action, statutes of repose cannot be so equitably tolled. CALPERS v. ANZ Securities. Should the District Court deny the motion, the putative class member, who purchased millions of Teva shares during the proposed class period will be time-barred from opting-out of the securities class action at-issue or asserting its own claims should the action be dismissed.
Viewpoint General

Judge Rakoff Highlights the Financial Risk to Objectors of Class Settlements

October 23, 2018 | | By Joel Rothman, Ellen Shapiro, Kevin Mortimer, Alain Mathieu

On August 15, 2018, Judge Jed S. Rakoff of the U.S. District Court for the Southern District of New York awarded an objector to the Petrobras class settlement nearly $12,000 in attorneys’ fees (click here for the Order).  The objector had asked the Court for almost $200,000 to cover 231.7 hours of legal work. Approximately one month later, Judge Rakoff sanctioned another objector to the Petrobas class settlement (click here for the Order). In the September Order, Judge Rakoff issued a grave warning to future objectors and reminded counsel that it is the Court’s duty to “safeguard the ability of objectors to protect class members from abusive settlements while in turn protect[] class members from being abused by the objectors themselves.
Viewpoint General

U.S. District Court Holds that Certain Claims by Opt-Out Plaintiffs Are Barred by the Statute of Repose

October 10, 2018 | Blog | By Joel Rothman, Kevin Mortimer, Ellen Shapiro, Alain Mathieu

In a recent ruling in In re: BP p.l.c. Securities Litigation the United States District Court for the Southern District of Texas dismissed claims asserted by opt-out plaintiffs as time barred by the Exchange Act’s statute of repose pursuant to the U.S. Supreme Court’s ruling in ANZ Securities. This decision underscores that institutional investors should closely monitor the statutes of limitation and repose applicable to securities fraud claims to ensure they are not later barred from recovery.
Viewpoint General
As we previously noted in this post, the United States District Court for the Northern District of California dismissed the Volkswagen Bondholder Plaintiff’s first amended complaint, with leave to amend, holding that it could not rely on the Affiliated Ute or Basic presumptions to plead reliance, and that it had not sufficiently pleaded direct reliance. On April 2, 2018, the Plaintiff filed a Second Amended Bondholder’s Class Action complaint (SAC), which added allegations: (1) of direct reliance, (2) that the bonds at issue were priced and traded on an efficient market, (3) that the defendants’ alleged fraud created the market, and (4) that Volkswagen committed fraud on the regulatory process. On September 7, 2018, the court denied the defendants motion to dismiss, and ruled that that the case may proceed to discovery, but also expressed concerns about the Plaintiffs’ ability to certify a class.
Viewpoint General
In Khoja v. Orexigen Therapeutics, Inc., the Ninth Circuit clarified the “rare circumstances” when a court may review documents extraneous to the pleadings in ruling on a motion to dismiss. Given that it has become routine for securities defendants to attach numerous documents to motions to dismiss, this decision has the potential make it easier for plaintiffs to survive a motion to dismiss. Over the next several months, it will be interesting to see whether this decision survives the defendants’ petition for en banc review, and if so, whether courts outside the Ninth Circuit follow this decision to curtail the use of extraneous documents in deciding motions to dismiss.

News & Press

Members Peter Saparoff and Robert Kidwell and Associates Joel Rothman and Kevin Mortimer authored this ABA’s Section of Litigation column on the trend of plaintiff investors filing a growing number of class action cases against financial institutions alleging violations of U.S. antitrust laws.