Frederick "Fred" Kosmo Jr. is a partner with WTK with over 25 years of experience practicing in business litigation. After beginning his career at Gibson, Dunn & Crutcher, Fred joined WTK as part of its early formation in 1992. His experience encompasses multiple practice areas and involves the representation of companies across a broad spectrum of industries, including manufacturing, retail, technology, nutrition, energy, services, healthcare and real estate. These are often “high stakes” cases involving multi-million dollar claims and hotly contested litigation over issues such as business ownership interests. A recent example includes obtaining an award in favor of his client in excess of $8.1 million.

As a result, Fred has significant experience in a wide range of contractual, business, partnership, consumer and business ownership disputes. Fred has represented clients in a variety of forums including state and federal courts, in trials, arbitrations and mediations. This includes representing clients before the California Supreme Court and successfully arguing cases before the Ninth Circuit Court of Appeal.

Fred has successfully defended clients, including retailers, manufacturers and Fortune 500 companies in numerous consumer class actions. These class actions often include allegations of unfair business practices under section 17200 and claims under the California Legal Remedies Act (“CLRA”). The cases have involved issues from gift cards, to wine bottles, and sales tax. Fred further has defended major clients against allegations of violation of Cal. Penal Code section 632 regarding recording calls, TCPA claims, and Prop 65 claims.

Fred has also defended all types of employment related claims including wrongful termination, race and age discrimination, harassment, disability discrimination, trade secret violations and interference with business claims. Fred has been called on by major clients to conduct independent factual investigations, especially involving a combination of employment, business and ethical issues.

Manufacturers, distributors and retailers of products have turned to Fred when they have become the target of a product liability lawsuit. He has successfully defended a vast array of corporations in various types of liability suits. These include representing Fortune 500 clients in MDL Litigation related to breast implants, latex gloves, PPA, and various other products.

Fred has also represented numerous parties in real property related litigation arising from purchase and sale agreements, commercial leases, real estate partnership agreements, and property management agreements. This includes a successful specific performance trial. His clients include owners, purchasers, developers, commercial landlords and tenants.

Experienced in a variety of healthcare litigation matters, Fred has represented healthcare providers and other managed care organizations in all areas of litigation. He has successfully defended major healthcare institutions in large reimbursement claim matters and against fair process claims by terminated physicians.

In addition to his active litigation practice, Fred is a respected leader in the legal community having held positions as the President of the Association of Business Trial Lawyers (“ABTL”), Chair of the Federal Magistrate Judge Selection Committee, President of the William L. Todd Inn of Court, and Commissioner on the 2020 San Diego City Redistricting Commission.

Fred graduated with honors, Order of the Coif, from the University of Southern California Law Center, where he served as an Article Editor, for the Southern California Law Review.

Affiliations

• Association of Business Trial Lawyers (“ABTL”), San Diego Chapter
  • Past President, Vice President, Treasurer, Program Chair, Annual Program Chair, and Board Member
• Commissioner, 2020 San Diego City Redistricting Commission
• Commissioner, City of San Diego Ethics Commission (2017-2021)
• Chair, Board Member, Point Loma Peninsula Community Planning Board (PCPB) (2017-Present)
• Commissioner, San Diego Airport Noise Advisory Commission (2017-2022)
• Chair, Federal Magistrate Judge Appointment and Reappointment Committees (2011-2015)
  • Former Committee Member, Federal Magistrate Judge Selection Committees (2011-2017)
• Commissioner, 2010 City of San Diego Redistricting Commission
• Board Member, Federal Bar Association Advisory Board (2016-Present)
• Board of Directors, Federal Defenders and Appellate Defenders, Inc. Boards (2014-Present)
• Commissioner, City of San Diego Independent Rate Oversight Committee (2016-2017)
• President, William L. Todd, Jr. American Inn of Court
  • Treasurer, Program Chair, Board Member
• WTK Chair, San Diego County Bar Association Diversity Fellowship Program (2011-2017)
• Southern District Court of California - Chair of Lawyer Representatives
• Ninth Circuit Judicial Conference - Lawyer Representative
• Chair, Torts Section, San Diego County Bar Association
  • Member San Diego County Bar Association
• Louis M. Welsh American Inn of Court
• Board of Directors, Austin Guild, Saint Augustine High School
• Lawyers Club of San Diego
• U.S. District Court, Southern District of California
• U.S. District Court, Central District of California
• U.S. District Court, Northern District of California
• U.S. District Court, Eastern District of California
• U.S. Ninth Circuit Court of Appeal

Speaking & Publications

• Panelist: Increasing Diversity Among Federal Magistrate Judges
• Panelist: Handling Difficult Ethical Dilemma’s
• Panelist: Effective Techniques at Mediations
• Lecturer, Continuing Education of the Bar
  • Fundamentals of Civil Procedure Before Trial
  • Taking Effective Depositions
• Contributing Author, Gibson, Dunn & Crutcher, California, Environmental Law Handbook
• Contributing Author, Gibson, Dunn & Crutcher, California Environmental Law 1992 Deskbook
• Author, University of Southern California Law Review, The Commercialization of Space: A Regulatory Scheme That Promotes Commercial Ventures And International Responsibility

Representative Matters

BUSINESS LITIGATION

• Obtained a $8.1 award for a client in a case involving the sale of seven pharmacies in San Diego.
• Prevailed at trial and obtained specific performance judgment to enforce the purchase terms of a land development sale.
• Prevailed at arbitration in obtaining a defense verdict in a breach of contract case related to the sale of residential property.
• Successfully dismissed multiple million dollar claim against a Fortune 500 software development company.
• Successfully represented major nutritional company, as well as software companies and other businesses in corporate ownership actions.
• Represented major United States retailer in a successful trade secret and non-competition action against a national vendor.
• Represented Fortune 500 energy company in multiple successful lawsuits against its franchisees in San Diego.
• Represented numerous businesses in disputes arising from day to day operations, including breach of contract, unfair business practices, fraud, negligent misrepresentation, trade secret violation and other commercial disputes.
• Represented many clients in litigation related to the purchase, sale or leasing of real property.

CLASS ACTIONS

• Obtained dismissal without leave to amend at the pleading stage of nationwide Telephone Consumer Protection Act class action on emergency exception grounds.
• Obtained opinion from the California Supreme Court in favor of retailers and protecting them from consumer class actions in sales tax actions.
• Successfully represented a Fortune 500 energy company in a Cal. Penal Code section 632 consumer class action related to the alleged improper recording of telephone calls.
• Successfully negotiated a settlement of a putative class action for the manufacturer of protein bars. Plaintiffs had asserted section 17200 and claims under the California Legal Remedies Act regarding the accuracy of the nutritional profile of our client’s product.
• Represented multiple national retailers with hundreds of stores in California in several consumer class actions by purchasers or holders of gift cards issued by our client. The cases involved section 17200 and CLRA claims that the retailer's gift card violated state statute governing the availability of expiration dates or cash back for gift cards.
• Successfully argued multiple dispositive motions dismissing consumer class actions related to sale tax allegations against a major retailer.
• Successfully represented multiple major manufacturing and retail clients against consumer class actions involving Prop. 65 allegations.

EMPLOYMENT

• Represented a Fortune 500 Healthcare company and obtained a 9th Circuit Court of Appeal Opinion dismissing all of the employee’s disability discrimination and failure to accommodate claims.
• Successfully represented a Fortune 500 Healthcare company in a gender and race discrimination case.
• Successfully represented software and nutrition business in multiple wrongful termination actions related to the termination of high level management employees.
• Defended San Diego manufacturing company and defeated TRO applications by former employee.
• Conducted an independent factual investigation for a Fortune 500 biomedical company related to an alleged claim of hostile work environment and quality issues.
• Conducted an independent factual and ethics investigation for large public energy company regarding an allegation of violations of the gift policy.
• Prevailed on a Motion for Summary Judgment in a case against an employee for race and age discrimination.
• Prevailed on a Motion for Summary Judgment in a case alleging disability discrimination, harassment, and failure to accommodate medical condition.

HEALTHCARE

• Successfully argued and obtained a favorable opinion at the 9th Circuit Court of Appeal dismissing an orthopedic surgeon’s fair process claims
• Successfully handled a large multi-party trial for a national healthcare provider involving contract reformation claims and potential damages of several million dollars.
• Brought a successful motion to dismiss for a national healthcare provider to dismiss a physician’s fair process and alleged unfair termination claims.
• Successfully negotiated the dismissal of a large alleged medical reimbursement claim against a national healthcare provider.
• Have routinely handled numerous cases and arbitrations on behalf of managed care organizations concerning provider reimbursement issues and payor rates.

Honors and Recognition

• Included in The Best Lawyers in America® for Commercial Litigation (2021-2024)
• Named to the San Diego Super Lawyers list (2008-2024)
• Named to the San Diego Super Lawyers “Top 50 Attorneys” list, Business Litigation (2016, 2018, and 2020)
• Named in San Diego Magazine’s "Top Lawyers" list (2015, 2017, 2019, 2020, 2022, and 2023)
• “AV” Preeminant Rating from Martindale-Hubbell
• Named by San Diego Metro "Men Who Make A Difference" (2014)
• Named in San Diego Business Journal’s Best of the Bar (2014)
• Named in The New York Times and Los Angeles Magazine "Top Attorneys in San Diego" (2013)