Michael McCloskey is a distinguished business trial lawyer recognized for his success in handling complex commercial matters involving federal securities fraud, state and federal derivative actions, and anticompetitive business practice claims. As a member of Wilson Elser's Securities Practice and the firm’s Commercial Litigation Practice, Mike defends corporations as well as their officers and directors before the SEC, the U.S. Attorney’s Office, state Attorneys General and in shareholder litigation. He also defends clients in antitrust matters, trade secret and non-compete litigation, consumer class actions, and business dissolutions or other disputes among business partners.

In an effort to reduce litigation risk, Mike advises his clients on corporate governance measures and best business practices. Among his clients are the boards of directors and audit committees of consumer product companies, computer manufacturers, high tech communications companies, biotech and pharmaceutical companies, and household manufacturing companies.

Mike has taught Securities Regulation as an adjunct professor of law at the University of San Diego. He is also certified as an instructor by the National Institute of Trial Advocacy and frequently lectures on current securities litigation issues and corporate matters.

Mike retired as a Colonel in the Marine Corps Reserves after 30 years of service. Before his civilian practice, he spent six years prosecuting criminal cases and defending the Department of the Navy and the Secretary of the Navy in federal district courts and circuit courts of appeal.

Areas of Focus

Securities Litigation
Mike regularly defends corporations and their officers and directors in disputes involving the alleged violation of state and federal securities laws. He represents his clients in SEC investigations and enforcement actions, including those accompanied by companion criminal investigations, as well as in shareholder class-action litigation, derivative actions, mergers and acquisition litigation, and proxy contests. Mike also represents investment advisors and broker-dealers in industry and customer arbitrations before the Financial Industry Regulatory Authority.

Trade Secret and Non-compete Litigation
Chief among the business cases Mike has litigated are those involving trade secrets and non-compete claims. He has resolved cases alleging statutory violations of the federal Defend Trade Secrets Act and state Uniform Trade Secrets Act and breach of fiduciary duty, business interference torts, breach of non-compete agreements, and unfair competition and unfair business practices claims.

Commercial Litigation
Mike has more than 35 years of experience as a trial lawyer litigating complex commercial and business tort matters. He has led the defense in an impressive variety of cases in state and federal courts, including technology transfer and license disputes, deceptive trade practices, and intracompany disputes between partners, shareholders and joint venturers. Mike frequently is called upon to represent nonprofit corporations and their principals in investigations commenced by Attorneys General and to provide a defense if subsequent litigation develops. Mike also has represented clients in antitrust actions brought under the Sherman Act and Clayton Act and defended clients at trial in a massive consumer class action seeking damages in the nine-figure range.

Mike has an enviable track record of success defending clients in the courtroom. He demonstrates equal success in meeting client objectives through arbitration and other types of alternative dispute resolution. General counsel of corporations often call on him to provide innovative legal strategies or execute focused litigation plans within designated time frames and budgets. Mike strives to accelerate resolution through procedural dismissals, substantive dismissals, successful tenders and negotiated settlements. But when early resolution is not possible, Mike does not hesitate to try cases in court. Best known for his involvement in high-exposure cases, Mike also handles less far–reaching matters with the same level of rigor and discipline.

    Education

    • University of the Pacific, McGeorge School of Law (J.D., 1982)
      • writer and managing editor, Pacific Law Journal
    • University of Southern California (B.S., 1976)
      • cum laude

    Bar Admissions

    • California

    Court Admissions

    • Supreme Court of the United States
    • U.S. Court of Appeals, Ninth Circuit
    • U.S. District Court, Northern District of California
    • U.S. District Court, Central District of California
    • U.S. District Court, Eastern District of California
    • U.S. District Court, Southern District of California
    • U.S. District Court, District of Colorado

    Professional Affiliations

    • San Diego Military Advisory Council, Chair, Board of Directors
    • Association of Business Trial Lawyers
    • American Bar Association
    • San Diego County Bar Association
    • American Inns of the Court, master
    • Phi Delta Phi legal fraternity, lifetime member

    Awards & Honors

    • Selected for inclusion in The Best Lawyers in America®, 2024-2026
    • Rated AV® Preeminent™ by Martindale-Hubbell
    • Selected for inclusion in the San Diego Super Lawyers®, 2008–2014, 2017-2021
    • Director of the Year Award for Service to the Corporate Directors Forum, 2014

Michael P. McCloskey

Yvars, Viergever & McCloskey Prevail for National Health Care Provider in Commercial Arbitration

Christopher Yvars (Partner, Denver, CO) Kimberly Viergever (Of Counsel-Denver, CO), and Michael McCloskey (Senior Counsel-San Diego, CA)  secured a complete defense victory for a national health care client in a commercial arbitration where the claimant sought more than $50 million in damages. The dispute centered on long-term services and nondisclosure agreements involving an alleged proprietary software platform, which claimant developed to streamline and enhance health care outcomes management for large-scale providers. The claimant alleged breach of contract and theft of trade secrets, asserting that the firm’s client had improperly used and disclosed confidential processes, data integration methods, and reporting functionalities unique to the claimant’s product. After a multi-day evidentiary hearing featuring testimony from technical experts and company executives, as well as extensive written submissions, the AAA Arbitration, Denver, Colorado, issued a final award denying all claims and dismissing the case in its entirety.

Christopher D. Yvars, Kimberly Viergever and Michael P. McCloskey

Ready & McCloskey Prevail in Enforcement Action by California Attorney General’s Office

​After securing a defense verdict in 2024 in a 16-day bench trial in San Mateo Superior Court's Complex Division, Marty Ready (Partner-San Diego, CA) and Michael McCloskey (Senior Counsel-San Diego, CA) convinced the presiding Judge to limit a statutory attorney fee award to $35,800 of the over $2 million requested by the California Attorney General (AG). The underlying case was an enforcement action by the California AG's office against our clients a nonprofit and one of its five directors alleging various breaches of fiduciary duties primarily arising from an alleged series of self-dealing transactions and diversion of charitable assets. The case was initiated as an investigative audit of the nonprofit, which ultimately led to the litigation. The case was contentious and heavily litigated by the parties for five years. At the conclusion of trial, the court only assessed $14,000 in fines and penalties against the nonprofit and two of its directors related to minor deficiencies in the its tax returns. Although this was an exceptional result, the real risk to our clients was a statutory attorney fee award that was mandatory in an enforcement action brought by the California AG's Charitable Trust Section. As expected, the California AG moved for an award of more than $2 million in attorney's fees and expert costs spanning the investigation and litigation. After extensive briefing and two days of oral arguments on the California AG's fee motion, the court awarded the AG $35,800 based on its lack of success at trial and representative of the amount of time related to obtaining a nominal amount at trial for errors on a nonprofit's tax returns. The California AG has appealed the judgment and is expected to appeal the fee award.​

Marty B. Ready and Michael P. McCloskey

Monks, McCloskey & Potiker Score Massive Win for 3D Printing Client

Sean Monks (Partner-San Diego, CA), Michael McCloskey (Senior Counsel-San Diego, CA), and Anne Potiker (Associate-San Diego, CA) prevailed in a recent Order on a Motion for Summary Judgment in a sticky and highly personal trade secret case in the 3D printing industry – a publicly traded $3 billion cap company against five individuals and their small startup. Also participating in the defense were outside co-counsel. Initially, there were seven causes of action. Four were jettisoned by virtue of 12(b)(6) litigation. What remained was a breach of contract claim and claims under DTSA and CUTSA. The plaintiff sought about $30 million in damages and attorneys’ fees. 

In discerning their remaining claims, our team focused hard on pushing for proper identification of the trade secret and pigeon-holed the plaintiff into a definition of their 12 trade secrets supposedly misappropriated, which they refused to amend. Almost three years ago we got the magistrate judge to hold them to these disclosures and ROG responses, and he indicated their refusal to provide further detail would preclude them from amending and could be used against them in summary judgment. Fast forward to the present, and we have an Order finding it was more than past time for the plaintiff to “put up or shut up” at summary judgment. Having been stuck with their meagre disclosures, the judge latched onto the deficiencies and summarily dismissed all trade secret claims. 

The breach of contract claim required a bit of creative analysis. Our clients were supposedly precluded from using their skills in future work that could overlap in the 3D printing industry. We assessed the provision at issue and determined it violated section 16600 of the CCP. In California, “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.” Cal. Bus. & Prof. Code § 16600(a). In fact, we filed an amended counterclaim alleging this issue, among other violations by the plaintiff related to our clients’ trade secrets. The U.S. District Court for the Southern District of California specifically found, “The defense has the better argument.” Heading into summary judgment, the plaintiffs were expecting to recoup up to $40 million in a windfall through damages and fees, or at the very least, grind their competition into the dust. Instead, their entire case is gone and they are facing the pointy end of the spear of our own counterclaims and potential motion for fees related to bad faith. 
 

Sean M. Monks, Michael P. McCloskey and Anne Potiker

Commercial Litigation Team Parachutes in to Obtain Complete Defense Verdict in $45 Million+ Dispute

Sean Monks (Of Counsel-San Diego), Drew Bruff (Associate-San Diego) and Michael McCloskey (Partner-San Diego) have represented three brothers (brothers) for several years in a contentious dispute against their sister. The brothers originally were represented by counsel who filed an arbitration against the sister arising out of a dispute involving commercial real estate. The sister filed a counter demand arising out of her perceived interest in a series of biotech entities spearheaded by one brother. In the first phase of that arbitration, the brothers’ claims against their sister were ruled time-barred by way of statute of limitations, and they dismissed their original counsel and hired Sean and Drew to defend them against the sister’s counter demand. The sister’s counsel engaged in substantial overreach by way of 14 causes of action alleging a variety of contract and tort claims, including defamation and RICO, seeking more than $45 million and attorneys’ fees for the sister’s claimed equity in one of the brother’s businesses and other damages. Those claims were the subject of the next arbitration phase resulting in five weeks of testimony with 23 witnesses. Sean, Drew and Mike were fortunate to have exceptional paralegal support provided daily by San Diego paralegal Kirstie Castillo, and the product of their collective effort was a complete defense victory: the 14 claims resulted in a complete defense verdict and zero dollars in recovery. The victory was the result of years of preparation handicapped by the poor presentation and worse outcome due to the performance of the brothers’ first counsel.

Sean M. Monks and Michael P. McCloskey

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