David Elsberg is a founding partner of Selendy Gay Elsberg. He served as Managing Partner of the Firm during its first four years. David is a “go-to” trial lawyer with decades of successful experience as a general commercial litigator doing trials through final judgment or verdict, as well and domestic and international arbitration hearings through final award. David’s long track record of success as a trial lawyer has also enabled David to secure billions of dollars in settlements for plaintiff clients and favorable settlements for defendant clients. David represents a wide variety of clients, including private equity, venture capital, and hedge funds in disputes in a range of areas including fiduciary duties, corporate governance, control contests, investment management, financial services, breach of complex contracts including indentures, energy, life sciences, and bankruptcy and insolvency.
David is recognized as one of the nation’s top trial lawyers. Chambers has recognized David as “fabulously smart,” “very creative, thoughtful and collaborative,” “an excellent litigator with a strong commercial sense” and “fearless.” Chambers has also named David a “Leading Individual” in commercial litigation.
Law360 named him a Securities MVP, noting his “artful and measured cross-examination style and tireless attention to detail” and reporting that clients describe him as “aggressive, passionate, and a first-rate thinker” whose “ability to read people and think numerous questions ahead is uncanny.”
The Legal 500 recognizes David as a leading commercial litigator, reporting that he is “highly regarded for his trial practice” and “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 adversarial proceedings handled by David and his colleagues 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.
- Fairfield Sentry Limited (in liquidation) et al.: Currently representing 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.
- Investment Advisor Disputes: Currently representing several unrelated investment fund managers in unrelated matters involving internal governance disputes and disputes with counterparties in arbitration and in court.
- A major energy company: Currently representing a major energy company in a confidential arbitration concerning acreage dedication commitments.
- A major energy company: The respondent in a confidential international arbitration victory in front of a AAA Panel that awarded claimant zero and dismissed with prejudice its claim against our client for hundreds of millions of dollars.
- 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.
Affiliations & Community Involvement
David earned his J.D., magna cum laude, from Harvard Law School, where he was an editor of the Harvard Law Review. He clerked for the Honorable Amalya Kearse on the U.S. Court of Appeals for the Second Circuit. He is a Fellow of the Litigation Counsel of America (“LCA”), in its Trial Lawyer Honorary Society. He has taught as a guest lecturer on securities regulation at Harvard Law School and was a Lecturer in Law at Columbia Law School. He has served on the Executive Board of The Calhoun School, an independent school in New York City.