Frederick R. Kessler, Senior Counsel
Litigation & Dispute Resolution Group
Frederick Kessler, who helped to found the Firm, tries, litigates and counsels on commerce-related disputes. Since leaving his position as a federal criminal prosecutor, Fred has been a senior member of the Firm’s Litigation & Dispute Resolution Group. In his more than 25 years of practice, Fred has had broad experience in litigating, arbitrating and mediating complex disputes, has tried numerous cases and arbitrations, and has argued appeals in both state and federal court. In recent years, Fred’s civil practice has focused on claims concerning contracts and related tortious activity, securities, bankruptcy and debtor and creditor law, and insurance and reinsurance. In addition, Fred regularly represents clients in connection with regulatory and criminal investigations of commercial matters. Fred has received Martindale-Hubbell's AV® Preeminent Peer Review Rating and has been recognized repeatedly by New York Super Lawyers as a leader in general litigation.
Fred received his J.D. degree from Fordham University School of Law, where he served as the Managing Editor of the Urban Law Journal, in 1988. He received his A.B. degree, cum laude, from Harvard College in 1984.
Illustrative Professional Civil Experience
- Represents a number of Fairfield Greenwich Group funds in litigation seeking to recover billions of dollars brought by the Trustee for the liquidation of Bernard L. Madoff Investment Securities LLC and the Liquidator for Fairfield Sentry Limited. Irving H. Picard, Trustee for the Liquidation of Bernard L. Madoff Investment Securities LLC v. Fairfield Sentry Limited, et al., Adv. Pro. No. 09-01239 (S.D.N.Y. Bankr.) (SMB); Fairfield Sentry Limited (in Liquidation) et al. v. ABN AMRO Schweiz AG, Adv. Pro. No. 10-3635 (S.D.N.Y. Bankr.) (SMB); Fairfield Sentry Limited (in Liquidation) et al. v. ABN AMRO Schweiz AG, Adv. Pro. No. 10-3636 (S.D.N.Y. Bankr.) (SMB).
- Represents AIG in litigation seeking to recover approximately $70 million in losses on certain project finance notes issued by a contractor of Petróleo Brasileiro, Inc. ("Petrobras"). American General Life Insurance Company, et al., v. Schahin Petróleo e Gás S,A,, et al., No. 2017-19016 (Dist. Ct. Harris County, Tex.).
- Represents selling shareholders in action seeking $45+ million for alleged breaches of representations and warranties and fraud in connection with sale of a software engineering company. VXI Lux Holdco S.A.R.L. v. SIC Holdings, LLC, et al., Index No. 652064/2017 (Sup. Ct., N.Y.)
- Represents nonparty H5, a leading provider of ediscovery, technology-assisted review and case preparation services, in connection with litigation concerning environmental pollution in Ecuador, Chevron Corporation v. Donziger, et al., 11 Civ. 0691 (S.D.N.Y.) (LAK), and multiple related third party subpoenas and applications to conduct discovery of the company, the CEO, and the general counsel pursuant to 28 U.S.C. § 1782.
- Represented as co-counsel National Credit Union Administration Board as liquidating agent of Southwest Corporate Federal Credit Union and Members United Corporate Federal Credit Union in actions alleging misrepresentation against various underwriters and/or sellers of more than $1 billion in residential-mortgage backed securities. National Credit Union Administration Board v. Wachovia Capital Markets, LLC, 13 Civ. 6719 (S.D.N.Y.) (DC); National Credit Union Administration Board v. Goldman, Sachs & Co. et ano., 13 Civ. 6721 (S.D.N.Y.) (DC); National Credit Union Administration Board v. RBS Securities, Inc. et ano., 13 Civ. 6726 (S.D.N.Y.) (DC); National Credit Union Administration Board v. Barclays Capital, Inc., 13 Civ. 6727 (S.D.N.Y.) (DC); National Credit Union Administration Board v. UBS Securities, LLC, 13 Civ. 6731 (S.D.N.Y.) (DC).
- Represented Quad Capital, LLC in action against former officer, obtaining a Temporary Restraining Order preventing possession, use and disclosure of confidential and competitively sensitive information misappropriated during his employment; matter settled confidentially. Quad Capital, LLC, et ano. v. Grimmelbein, Index No. 653528/13 (N.Y. Sup. Ct., N.Y. County) (Ramos, J.).
- Represented Bessemer Trust Company, N.A. (“Bessemer”) in an action purporting to allege a federal securities fraud claim and various state law claims arising out of plaintiff’s purchase of auction rate securities, obtaining dismissal of the amended complaint (dismissing the federal claim on particularity and loss causation grounds, and declining to exercise supplemental jurisdiction over the state law claims) and denial of plaintiff’s motion for reconsideration; plaintiff appealed both orders, and matter settled confidentially. Oliveira v. Bessemer Trust Company, N.A., 09 Civ. 00713 (S.D.N.Y.) (PKC), Docket No. 10-1595 (2d Cir.).
- Represented ZC Specialty Insurance Company (“ZC”), an affiliate of a large Swiss financial services company, in related actions arising from plaintiffs’ sale of nursing homes in a deal for whose financing ZC acted as surety. Obtained dismissal of Ohio state court action alleging fraudulent transfer based on a forum selection clause, and denial of a motion for reconsideration. Wolfson et ano. v. Cleveland SeniorCare Corp. et al., Case No. CV 08-677327 (Ohio Court of Common Pleas, Cuyahoga Co.). After Plaintiffs re-filed the portion of the action against ZC in Illinois state court, removed the action to Illinois federal court, obtained dismissal of the complaint against ZC for failure to plead fraud with particularity and for failure to state a claim and, after plaintiffs were permitted to amend, obtained dismissal of the amended complaint against ZC on the same bases. Wolfson et ano. v. Cleveland SeniorCare Corp. et ano., No. 1:09-cv-07382 (N.D. Ill.) (Leinenweber, J.).
- Represented Citadel Construction Corp. (“Citadel”) in an action for breach of an alleged guarantee that arguably required Citadel to pay up to $55 million if an unaffiliated tenant defaulted on a lease, where we defeated summary judgment by adducing overwhelming evidence that the alleged guarantee was forged, including the affidavit of Citadel’s President (establishing that he did not sign the alleged guarantee) and the report of a handwriting expert (opining that it was highly probable that the signature had been forged and probable that a recidivist, court-adjudicated fraudster, who formed the tenant and served as its principal, had done so), enabling settlement of the case. 1515 Broadway Fee Owner LLC v. Citadel Construction Corp., Index No. 109591/09 (N.Y. Sup. Ct., N.Y. Co.) (Gische, J.).
- Represented corporate affiliates of The Hanover Insurance Group in an action seeking over $70 million for breach of variable life insurance policies that allegedly gave plaintiffs an affirmative right to market-time in various sub-accounts, obtaining dismissal of the original complaint on a motion for judgment on the pleadings, dismissal of the amended complaint on a motion to dismiss, partial dismissal of the second amended complaint on a motion for summary judgment and preclusion of plaintiffs’ supposed experts and evidence of their theories on a motion under Daubert, fundamentally impairing plaintiffs’ ability to prove their alleged damages and paving the way for a settlement shortly before trial. Helft, et al. v. Allmerica Financial Corp., et al., 03-CV-0035 (N.D.N.Y.) (NAM/RFT).
- Represented emergent company in AAA arbitration against Lucent Technologies Inc. and an affiliate (“Lucent”) for breach of an agreement authorizing our client to negotiate a license with Microsoft Corporation to the patent portfolio of Lucent and, after a five-day hearing, obtained an award of damages and declaratory relief potentially worth more than $100 million. Then defeated Lucent’s effort to vacate the award in its local court while obtaining confirmation of the award in the state where the arbitration occurred. Lucent Technologies GRL LLC et ano. v. ThinkFire Services USA, Ltd., Docket No. UNN-C-121-05 (N.J. Sup. Ct., Ch. Div., Union Co.) (Lyons, J.); Lucent Technologies GRL LLC et ano. v. ThinkFire Services USA, Ltd., Index No. 111528/05 (N.Y. Sup. Ct., N.Y. Co.) (Gammerman, J.).
Other Professional Activities and Positions
- Assistant United States Attorney, United States Attorney’s Office for the District of New Jersey (1995-99). Awarded “Outstanding Performance Rating” by Attorney General Janet Reno for superior performance of official duties.
- Associate, Davis Polk & Wardwell LLP (1990-95).
- Law Clerk, Hon. Anthony J. Scirica, U.S. Court of Appeals, Third Circuit (1989-90).
- Law Clerk, Hon. Inzer B. Wyatt, U.S. District Court, Southern District of New York (1988-89).
- Admitted To Practice, New York; New Jersey; United States District Courts, Southern and Eastern Districts of New York, District of New Jersey, Northern District of California and Eastern District of Wisconsin; United States Courts of Appeal for the Second and Third Circuits; and numerous other States or jurisdictions pro hac vice.
Awards and Recognitions
- Martindale-Hubbell - AV® Preeminent Peer Review Rating
- New York Super Lawyers – General Litigation (repeatedly recognized 2009-2017).
Other Activities and Positions
- Member, Board of Directors, Fordham Law Alumni Association (2017-Present)
- Member, Board of Advisors, Friends of Harvard Lacrosse (2007-Present)
- Associates Giving Chair, Harvard College Fund Class of 1984 Gift Committee (2010-2013, 2015-2017)
- Member/Vice Chair, Harvard College Fund Class of 1984 Reunion Gift Committee (1994, 1999, 2004, 2009, 2014)