Matthew H. Lembke

Listed in Chambers USA, Litigation: Appellate, 2015-2023 Listed in The Best Lawyers in America® Appellate Practice, 2007-2024 Bet-the-Company Litigation, 2019-2024 Commercial Litigation, 2006-2024 Litigation – Environmental, 2011-2024 Water Law, 2010-2024 "Lawyer of the Year," Birmingham, Appellate Practice, 2013 Listed in Mid-South Super Lawyers "Top 50," Alabama, 2016-2023 "Top 50," Birmingham, 2019-2023 Appellate, 2016-2023 Listed in Alabama Super Lawyers "Top 50," Appellate, 2015 Appellate, 2013-2015 Listed in Benchmark Litigation, "Local Litigation Star," Alabama, 2010-2021 "Litigation Star", 2023-2024 American Law Institute, Member Alabama Constitutional Reform Commission, Member Listed in Birmingham Magazine, “Top Attorneys," 2014, Appellate Listed in B-Metro, "Top Lawyers," 2019-2020 Matt’s experience as an appellate advocate involves briefing and oral argument in dozens of appeals as well as serving on trial teams in major litigation to ensure that appellate issues are properly preserved. Matt has often been called on to serve as appellate counsel in matters where other lawyers handled the trial, including cases with large punitive damages verdicts. Matt also has extensive experience in handling all aspects of complex trial-level litigation. Simon v. HealthSouth of Sarasota L.P., 2022 WL 3910607 (11th Cir. Aug. 31, 2022) Successfully obtained affirmance of a summary judgment order in a False Claims Act retaliation case. Nuclear Development, LLC v. Tennessee Valley Authority, 532 F. Supp. 3d 1154 (N.D. Ala. 2021) In a case involving the failed sale of a partially completed nuclear plant, successfully obtained a ruling that the Atomic Energy Act of 1954 required the purchaser to obtain approval from the Nuclear Regulatory Commission before the sale could occur. Peterson v. Hyundai Motor Co., 502 P.3d 320 (Utah App. 2021) Successfully obtained affirmance of a new trial order based on erroneous jury instructions and inadequate expert disclosures. Ex parte Encompass Health Corp., 334 So. 3d 199 (Ala. 2021) Successfully obtained a writ of mandamus holding that the trial court failed to follow the mandate rule by allowing a party to raise an issue that had not been argued in an earlier appeal. United States v. AseraCare, Inc., 938 F.3d 1278 (11th Cir. 2019) In a major decision on a novel question, successfully obtained a ruling that the mere difference of opinion among physicians, without more, cannot support a False Claims Act claim against a hospice provider. Leeds v. Board of Dental Examiners of Alabama, 382 F. Supp. 3d 1214 (N.D. Ala. 2019), appeal dismissed, 2021 WL 3197173 (11th Cir. 2021). Successfully obtained denial of a motion to dismiss in which the defendants contended that the plaintiffs lacked standing to assert claims of anti-competitive conduct against the members of a state regulatory board who were active participants in the regulated market. HealthSouth Rehabilitation Hospital of Gadsden, LLC v. Honts, 276 So. 3d 185 (Ala. 2018) In a case handled by another firm at trial, successfully obtained the reversal of an adverse jury verdict of $20 million in a medical malpractice case, based on a ruling that the case had to be remanded for a new trial due to a jury instruction error. Ex parte Caremark Rx, LLC, 229 So. 3d 751 (Ala. 2017) Successfully obtained a writ of mandamus holding that trial court lacked residual jurisdiction under a prior settlement agreement to require production of documents Ex parte Hill, 225 So. 3d 56 (Ala. 2016) In a case handled by another firm in the trial court, successfully obtained a ruling that the trial court failed to adhere to fee contract in awarding opposing counsel $13.25 million in attorneys’ fees. Hinrichs v. General Motors of Canada, Ltd., 222 So. 3d 1114 (Ala. 2016) Successfully obtained affirmance of trial court’s dismissal due to lack of personal jurisdiction. GE Capital Aviation Services Inc. v. Pemco World Air Services, Inc., 92 So. 3d 749 (Ala. 2012) In a case handled by another firm at trial, successfully obtained the reversal of an adverse jury verdict of $9.6 million, based on a ruling that judgment as a matter of law should have been entered on fraud claim and that case had to be remanded due to a jury-instruction error on contract claim. Ex parte Callan Associates, Inc., 87 So. 3d 1161 (Ala. 2012) Successfully obtained a writ of mandamus directing the trial court to dismiss an action involving a claim brought against an investment advisor in connection with a controversy concerning Alabama’s prepaid tuition program. City of Birmingham v. Orbitz, 93 So. 3d 932 (Ala 2012) Successfully upheld a summary judgment for an online travel company in a tax dispute City of Prichard v. Balzer, 95 So. 3d 1 (Ala. 2012) Submitted a successful amicus brief on behalf of Jefferson County, Alabama, in support of a key point of state law concerning ability of Alabama counties to seek bankruptcy protection. Southeastern Federal Power Customers, Inc. v. Geren, 514 F.3d 1316 (D.C. Cir. 2008) In a case arising out of long-running “water war” between Alabama, Georgia, and Florida, successfully overturned district court’s approval of a settlement agreement entered into by the Corps of Engineers. Ex parte Cooper Tire & Rubber Co., 987 So. 2d 1090 (Ala. 2007) Initial case establishing e-discovery requirements in Alabama. Barber v. Jefferson County Racing Association, 960 So. 2d 599 (Ala. 2006) Successfully overturned trial court’s ruling that “sweepstakes” machines at local race track did not constitute “gambling” under Alabama law Pharmacia Corp. v. Suggs, 932 So. 2d 95 (Ala. 2005) Successfully defeated attempt to revive a settled class action in an environmental contamination case. BT Securities Corp. v. W.R. Huff Asset Management Co., 891 So. 2d 310 (Ala. 2004) Successfully overturned trial court’s denial of a motion to dismiss based upon federal preemption in a securities fraud case. Russell Corp. v. American Home Assurance Co., 264 F.3d 1040 (11th Cir. 2001) Obtained affirmance of federal district court decision remanding insurance coverage action to state court. Russell Corp. v. Sullivan, 790 So. 2d 940 (Ala. 2001) Defended textile manufacturer in an environmental action alleging trespass and nuisance claims relating to discharge of textile wastewater into a public lake.  On appeal from a jury verdict in favor of the plaintiffs, the Alabama Supreme Court reversed the judgment in favor of the plaintiffs and rendered judgment in favor of the defendant textile manufacturer. Atlanta Casualty Co. v. Russell, 790 So. 2d 664 (Ala. 2001) Obtained appellate decertification of insurance class action in the Alabama Supreme Court’s first published opinion applying the state’s class certification statutes.