Kyle D. Foltyn-Smith

Partner

Direct: (310) 893-5152
Fax: (310) 893-5195

kyle@hawxhurstllp.com

Profile
Kyle defends and prosecutes individual cases and proposed class actions involving antitrust, fraud, products liability, false advertising, consumer protection, employment discrimination, and First Amendment issues. Kyle has successfully second-chaired multiple trials and writ proceedings, argued dispositive motions and negotiated settlements in both state and federal courts.

Clients appreciate Kyle’s grit, intellectual creativity, and ability to tailor a litigation approach to meet their specific needs. He has worked with a broad range of private and public clients across several industries, including consumer packaged goods brands, oil and gas companies, hospital groups, aviation and investment firms. Kyle has also represented a variety of clients pro bono, including persons providing home health aide to terminally ill family members, asylum seekers fleeing religious and political persecution, vulnerable small businesses fending off malicious ADA actions, and individuals wronged in real property transactions. He was selected as a Southern California Super Lawyers Rising Star® for 2020 and 2021.

Kyle is originally from San Clemente, California, where he grew up surfing and playing water polo on an international level. He graduated magna cum laude with a double major in English and Political Science from UCLA and earned his J.D. from USC’s Gould School of Law, where he served as President of the Federalist Society. Before becoming a lawyer, Kyle worked in county politics as a policy advisor, analyzing issues relating to transportation, waste management, land use and healthcare. Kyle currently lives with his wife and son in Venice Beach.

Representative Engagements

Kyle was a member of the Firm’s trial team that obtained a complete dismissal and an award of attorney’s fees for the Firm’s client on appeal to the Texas Court of Appeals. The plaintiff sued in state court alleging violations of the Texas Debt Collection Act and unreasonable debt collection practices by the Firm’s Michigan client. The trial court denied the Firm’s motion to dismiss, which argued that the alleged conduct was protected by the client’s First Amendment right to petition and that the plaintiff’s causes of action based on that conduct should be dismissed pursuant to the Texas Citizen’s Participation Act (TCPA). The Firm sought immediate appeal of the trial court’s order. Kyle was the primary author of the appeal. The Court of Appeals sided with each of the Firm’s major arguments, finding as a matter of first impression that pre-suit debt collection conduct can be protected by the TCPA. The Court of Appeals’ order instructs the district court to dismiss all claims against the Firm’s client and to order the plaintiff to pay the Firm’s client’s legal bills incurred in its successful defense.

Kyle was a member of the Firm trial team that won summary judgment for an international petroleum services provider against a labor subcontractor that sought to recover over $12 million in connection with a failed corporate acquisition. The summary judgment motion was based, in large part, on Kyle’s deposition of the plaintiff, during which Kyle obtained testimony that undermined key elements of its breach of contract and fraud claims. The Firm’s client’s dismissed its counter-claims without prejudice before entering into a favorable settlement.

Kyle defended a manufacturer of home building materials in a series of products liability lawsuits that were all either successfully dismissed early in the litigation or settled for a miniscule fraction of plaintiffs’ claimed damages. Several plaintiffs’ firms brought the cases in a campaign to obtain a favorable “test case” in advance of a proposed class action. Kyle aggressively challenged every one of the lawsuits, which caused the law firms leading the attack to abandon the endeavor.

In a two-week trial, Kyle second-chaired a successful challenge by Los Angeles municipalities to the Water Quality Control Board’s Municipal Separate Storm Sewer System (MS4) NPDES permit. Kyle and the trial team demonstrated how the Board failed to adequately consider the immense financial burden its new stormwater rules would impose on local cities, which was later estimated to require approximately $20 billion in additional spending from their already strained budgets.

Kyle second-chaired a successful writ of mandate proceeding that forced an investment company to permit an individual shareholder and his forensic accountants to inspect the company’s books and business records. In addition to uncovering the investment company’s hidden misconduct, as the prevailing party, Kyle’s client was awarded hundreds of thousands of dollars in attorney’s fees and costs.

Kyle was a member of the Firm’s trial team that won a jury verdict after a three-week federal court trial where the clients, the leading manufacturer and distributor of energy shots, were alleged to have engaged in illegal price discrimination in violation of the Robinson-Patman Act.

Kyle was a member of the Firm’s trial team that obtained decertification of a consumer class action brought against the Firm’s client—the world’s largest independent petroleum refiner. The client retained the Firm after the court had certified a state-wide class of consumers of branded gasoline. Decertifying the class left the plaintiff, who had sought class damages in excess of $60 million, with only an individual damage claim valued at less than $100. The Firm also obtained summary judgment rulings that, among other things, dismissed plaintiff’s claim for injunctive relief.

Kyle prevailed in an action on behalf of a European company to enforce buyout provisions in a Shareholders’ Agreement, clearing the way for the client to acquire full ownership of a privately owned airport.

Kyle obtained dismissal for lack of personal jurisdiction of a foreign manufacturer from a products liability case where the plaintiff sought to recover for injuries resulting from devices the foreign manufacturer had designed and licensed to American companies for exclusive manufacture.

At arbitration, Kyle won a breach of contract crossclaim against a so-called “clean energy” corporation. The clean-energy company originally sued Kyle’s client in court but later compelled arbitration. After winning the arbitration, Kyle successfully pursued collection across multiple states, which led to complete satisfaction of the judgment debt and attorney’s fees before junior creditors could force the clean-energy company into bankruptcy.

Kyle successfully quashed a federal subpoena on First Amendment grounds that sought to unmask the identity of an anonymous financial blogger. Kyle persuaded the federal judge that the subpoena violated the blogger’s constitutional rights to anonymity and privacy.

In a Section 1983 lawsuit in federal court, Kyle represented an individual plaintiff against a labor union that had mistreated her, refusing to let her leave the union and continuing to take dues from her paycheck over her objections. Kyle challenged the union’s actions on First Amendment grounds and obtained a settlement in which the labor union agreed to cease the unauthorized pay deductions, refund all money previously deducted, and pay the plaintiff’s attorneys’ fees and costs.

Kyle played a key role in obtaining summary judgment on federal preemption grounds in favor of a commercial aircraft lessor sued for negligent entrustment of an aircraft to an African airline after a fatal crash.

In addition to other matters he is handling, Kyle is a member of the Firm trial team currently defending the world’s premier thrill-ride design company, is a member of the Firm trial team defending a major industrial goods manufacturer in a products liability case,and is a member of the Firm trial team defending the world’s largest independent oil refiners against antitrust claims in consolidated proposed class actions pending in the Southern District of California.

Publications
Grapes of Wrath: Insurance Fallout from the Wine Country Wildfires, Insurance Journal, November 20, 2017

Education
University of Southern California, Gould School of Law (J.D.)

University of California, Los Angeles (B.A., magna cum laude)