Kyle P. O’Malley
Kyle’s trial and appellate practice focuses on employment, civil rights, consumer, privacy, commercial, and intellectual property matters. He is honored to carry on the firm’s tradition of fighting for employees, minorities, artists, consumers, businesses, and others harmed, exploited, or marginalized by the powerful or unscrupulous.
Among Kyle’s notable victories for clients is securing a unanimous opinion from the California Supreme Court advancing protections against employment discrimination. In Raines v. US Healthworks Medical Group, 15 Cal.5th 268 (2023), the Court held that business agents performing employment-related tasks for other companies, such as screening job applicants, can be held liable for discrimination under California’s Fair Employment and Housing Act (“FEHA”). The decision has been described as a “landmark” victory for workers, with the California Supreme Court listing it as one of four “high profile cases” decided in 2023.
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Employment:
Employee v. Retailer – Represented Employee in an age discrimination case. Employee alleged that Company denied them a promotion that went instead to another employee 30 years younger and that, about a year later, Company fired Employee. Matter settled favorably on the eve of trial, after the district court denied Company’s motions to exclude testimony by Employee’s experts and a whistleblower expected to confirm that Employee was targeted by management for termination.
Employee v. Tech Company – Represented Employee alleging retaliation and Equal Pay Act violations against Tech Company. After two years of litigation, matter settled favorably after Court granted Employee’s motion to compel Tech Company to turn over additional documents and information it tried to withhold.
Employee v. Law Firm – Represented Employee in pre-litigation mediation. Employee alleged they were fired from Law Firm after taking leave to care for a terminally ill family member. Matter settled favorably prior to and without need to initiate lawsuit.
Employee v. Law Firm – Represented Employee in pre-litigation mediation. Employee alleged they were fired from Law Firm in retaliation for raising concerns about false advertising by Law Firm. Matter settled favorably prior to and without need to initiate lawsuit.
Co-Founder v. Company – Represented Co-Founder of Company in connection with claims for unpaid wages, breach of contract, and breach of fiduciary duty. The parties resolved their differences amicably prior to and without need to initiate lawsuit.
Employment Counseling – Kyle regularly counsels employers and companies around the Bay Area about their legal obligations to their employees and independent contractors. His services include conducting internal investigations; advising employers on wage-and-hour, overtime, meal and rest break policies; advising employers on anti-discrimination, harassment, and retaliation policies and procedures; advising employers about leave and time off policies and practices; and auditing and revising of employee handbooks.
Privacy:
Patient v. Doctor – Represented Patient in name/image/likeness and invasion of privacy matter against Doctor, television station, and ad agency in connection with defendants’ use of Patient’s “before-and-after” surgery photos in television commercials without permission. The parties resolved the matter amicably after the Court granted Patient’s motion compelling disclosure of Defendants’ financial information.
App Users v. TikTok – Represented class of App Users as part of team of plaintiffs’ leadership committee. App Users alleged TikTok surreptitiously harvested and profited from private user information in violation of numerous federal and state consumer privacy laws. Matter settled for $92 million. In addition to monetary award, Court granted extensive injunctive relief, including requiring TikTok create, at its own expense, a comprehensive data privacy training and compliance program for all newly hired employees and contractors and to institute annual privacy training for all employees.
Entertainment/Intellectual Property:
Artist v. Tech Company – Represented legendary Oakland Artist in copyright infringement action against Tech Company, production company, and music publishing company for use of iconic Bay Area hip hop anthem in streaming TV series. The matter was resolved amicably.
Painter v. Doe – Represented renowned Painter in action to recover millions of dollars worth of Painter’s art allegedly unlawfully retained by defendant.
Psychotherapist v. Tech Company – Represented renowned Psychotherapist in copyright infringement action against Tech Company over allegedly unlawful use of Psychotherapist’s addiction treatment program. Matter settled favorably.
Photographer v. Publication – Defended Publication in copyright infringement action by Photographer. The matter settled for a confidential amount prior to discovery commencing.
Musicians v. Tech Company – Represent class of approximately 900 Musicians in class action (the first such class action of its kind) alleging Tech Company violated Talent Agencies Act and the Unfair Competition Law. Class certified and matter settled.
Competitor v. Company – Represented Company threatened with trademark infringement claim by Competitor who applied for registration of trademark in Company’s name. Company and Competitor settled dispute after entering into coexistence agreement (secured by gaining cooperation of third party with similar trademark), thereby avoiding litigation and saving Company significant expense. Company gained trademark registration after Competitor withdrew application.
Social Media Influencer v. Competitor – Represented successful social media Influencer threatened with patent infringement by foreign Competitor. Competitor backed down and withdrew entire demand during pre-litigation negotiations.
Intellectual Property Counseling – Kyle has counseled numerous individuals and entities about their copyright, trademark, and patent rights. His services include advising clients on how to protect and defend their intellectual property rights; advising clients on how to avoid disputes with other rights holders; prosecuting copyright and trademark applications; policing competitors’ use of similar IP; negotiating coexistence agreements; and more.
Copyright Terminations – Kyle has extensive experience in copyright termination procedures under § 203 and § 304 of the Copyright Act. Kyle has helped numerous high-profile artists reclaim their rights in their copyrighted works, and regularly advises clients on how to recapture the income derived from their works.
Commercial:
Real Estate Developer v. Cannabis Company – Defended Cannabis Company against Real Estate Developer’s claims that Company breached an option to purchase commercial real estate in downtown Oakland. The parties amicably resolved all differences and settled the matter shortly after witness for Real Estate Developer made damning admissions during deposition.
Cosmetics Company v. Cosmetic Company – Represented US Cosmetics Company in business and intellectual property dispute with French joint venturer in trial court and on related appeal. The matter resolved to the mutual satisfaction of the parties.
Outside of his law practice, Kyle is passionate about public service. He serves as a member of the California Lawyers Association’s Diversity, Equity, and Inclusion Committee (2022-present) and has served as a Commissioner on the Oakland Mayor’s Commission on Persons with Disabilities (2022-2023 term). He is also an associate and alumnus of the Telluride Association, an organization dedicated to preparing and inspiring promising students to lead and serve through free, transformative educational experiences rooted in critical thinking and democratic community.
Kyle lives in Oakland with his husband (an artist and activist) and their two rescues (Cy and Rocky). In his free time, he can be found painting, exploring nature, and spoiling his nephew.
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Stanford University (BA - English Literature)
With distinction
University of Virginia School of Law (JD)
Submissions Editor - Journal of Law & Politics
Senior Legal Writing Fellow
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State Bar of California
California Employment Lawyers Association (CELA)
California Lawyers Association
Labor & Employment Law Section
Litigation Section
Intellectual Property Section
Diversity, Equity, and Inclusion Committee (2022-2023 term)
Bay Area Lawyers for Individual Freedom (BALIF)
Bar Association of San Francisco
Litigation Section
Appellate Section
Labor & Employment Section
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California
All United States District Courts in California
Ninth Circuit