David Elsberg

Work Highlights

Fairfield Sentry Limited (in liquidation) et al.: Represented foreign representatives of several funds in liquidation abroad in Chapter 15 proceedings in Bankruptcy Court for the Southern District of New York, and before the U.S. District Court on appeal, asserting foreign avoidance, common law, and breach of contract claims, seeking to recover about $6 billion dollars in redemption payments from hundreds of entities arising out of the Madoff scheme.

UMB Bank as Trustee: Currently representing Trustee under Contingent Value Rights (“CVR”) Agreement in a lawsuit against Bristol Myers Squib (“BMS”) seeking $6.4 billion arising from BMS’s failure to pay out holders of CVRs that were issued in connection with BMS’s acquisition of Celgene.

Save On SP: Currently defending Save On SP, which provides cost-saving strategies for self-funded employers, against a $100 million suit by Johnson & Johnson alleging tortious interference and violations of New York’s General Business law in connection with copay assistance strategies.

A major energy company: Successfully defended our client against a claim seeking up to $1 billion, obtaining an award in our client’s favor after an eight-day confidential CPR arbitration hearing.

A major energy company: Successfully represented the respondent in a confidential international AAA arbitration defeating a claim against our client seeking hundreds of millions of dollars.

An investment fund: Obtained a complete dismissal of claims that by declining to acquire certain real-estate related assets it breached a letter of intent and an asset purchase agreement.

Crestview v. Koch: In a six-day trial in the Delaware Court of Chancery, represented private equity fund Crestview Partners against Bill Koch in successfully enforcing the contractual right to conduct a sale of Oxbow Carbon, the company in which the private equity fund had bought a minority interest.

Quadrant v. Vertin: In a one-week trial in the Delaware Court of Chancery, successfully represented defendants against allegations of breach of fiduciary duty, breach of contract, and fraudulent transfer. David also argued the appeal to the en banc Delaware Supreme Court which upheld the trial win.

MASTR Adjustable Rate Mortgages Trust 2006-OA2 et al v. UBS: In a one-month trial in the Southern District of New York, successfully represented plaintiff in breach-of-warranty suit regarding three residential mortgage-backed securities trusts.

ResCap bankruptcy litigation: Represented the ResCap Liquidating Trust in suits against dozens of loan originators for indemnity and breaches of contract arising from the sale of defective mortgage loans, achieving settlements of $590 million.

Access vs. JPMorgan: In a three-week trial in New York Supreme Court, successfully represented plaintiff in claim for breach of investment guidelines.

Five Mile Capital v. MSR Hotels: In a three-day hearing in the Southern District of New York Bankruptcy Court, successfully represented defendant investment fund executives against claims of breach of fiduciary duty. All claims were dismissed in their entirety.

Rosen Capital v. Merrill Lynch: In a two-week FINRA hearing, successfully represented claimant investment fund in seeking damages from improper margin call and breach of account agreements. The arbitration panel issued an award of about $79 million, which was reported to be one of the largest investor arbitration awards on record.

Washington Mutual v. JPMorgan: In one of the largest bankruptcies in history, represented the debtor against challenges to its confirmation plan in the District of Delaware Bankruptcy Court. The result, a $6 billion settlement, represented a significant distribution for Washington Mutual's creditors.

A leading biotechnology company, in successfully obtaining a judgment dismissing a complex patent infringement suit brought by a multinational pharmaceutical company that sought over $500 million in damages.

Career

David Elsberg is a founding partner of Selendy Gay Elsberg. He served as Managing Partner of the Firm during its first four years. He is a “go-to” trial lawyer with decades of successful experience doing trials through final judgment or verdict, as well and domestic and international arbitration hearings through final award. David is ranked among the top trial lawyers in the United States by a number of leading publications.

Chambers refers to David as “fabulously smart” and “fearless”—as well as “very creative, thoughtful and collaborative” and “an excellent litigator with a strong commercial sense.” Chambers also named David a “Leading Individual” in commercial litigation.

Law360 named David a Securities MVP, noting his “artful and measured cross-examination style.” Law360 also reports that clients describe David as “aggressive, passionate, and a first-rate thinker” whose “ability to read people and think numerous questions ahead is uncanny."

The Legal 500 named David a leading commercial litigator, reporting that he is “highly regarded for his trial practice.” The Legal 500 also reports that David “displays particular strength in financial litigation, including major bankruptcy and securities cases.”

David has been named a “Litigation Star” by Benchmark Litigation, a “Plaintiffs’ Lawyer Trailblazer” by the National Law Journal and one of the “500 Leading Lawyers in America” by Lawdragon.

The New York Law Journal honored David with its “Distinguished Leader” award for “great performance while demonstrating clear leadership skills leading to positive outcomes.”

The large number of cases led by David in bankruptcy court is reflected in Lex Machina’s 2022 Law Firms Activity report, which lists Selendy Gay Elsberg as one of the two most active firms representing bankruptcy plaintiffs and appellants in federal court.

David represents a wide variety of clients, including private equity, venture capital and hedge funds and their portfolio companies. David represents clients in disputes in a range of areas including fiduciary duties, corporate governance, control contests, corporate-entity “divorces”, crisis management, financial services and products, energy, life sciences, bankruptcy and insolvency, fraudulent transfer, and breach of indentures and other complex contracts. David is a veteran litigator in the New York federal and state courts, the Delaware Court of Chancery, and he has also handled many litigations in other U.S. jurisdictions as well as international arbitrations.

Publications

Guest Lecturer on Securities Regulation at Harvard Law School, 2019.

Lecturer in Law at Columbia Law School, 2011-2018.

“International Arbitration: How To Win Your Arbitration And Enforce The Award,” (Panelist), 2013.

"Response to Ponzi Schemes: Alternative Investment Funds under Scrutiny," (Faculty Member and Lecturer) NYC PLI Center, 2009.

"Statute-of-Limitations Arbitrability: Departing from Rule," New York Law Journal, 2007.

“Validity of Pacts with Arbitration Clauses: Courts Split,” New York Law Journal, 2006.

“Second Circuit Bucks Trend on Arbitration Subpoenas,” New York Law Journal, 2006.

“Arguing Arbitrability After 'Buckeye,'” New York Law Journal, 2006.

“Public Policy Trumps Arbitration Clauses and Statutes,” New York Law Journal, 2006.

“Incorporation of Arbitration Clauses,” New York Law Journal, 2006.

“Expansive View of Territorial Reach of Arbitration Subpoenas,” New York Law Journal, 2005.

“Courts Split on Decision-Making Power Between Court, Arbitrator,” New York Law Journal, 2005.

“Federal Arbitration Act vs. New York State Arbitration Law,” New York Law Journal, 2005.

“District Split: Arbitrators, Non-Parties, Pre-Hearing Discovery,” New York Law Journal, 2004.

“Confronting the New Challenges of Scientific Evidence,” (Co-author of Introduction) 108 Harvard Law Review 1481, 1995.

“Excessiveness Review for Capital Defendants After Honda Motor Co. v. Oberg,” 108 Harvard Law Review 1305, 1995.

“Punitive Verdicts – Judicial Review of Jury-Imposed Punishment,” 108 Harvard Law Review 191, 1994.

“Arbitration – Consolidation of Separate Proceeding,” 107 Harvard Law Review 499, 1993.

Education

Awards