David Elsberg is a founding and Managing Partner of Selendy & Gay.
David is a seasoned trial lawyer with decades of experience trying cases in courts and arbitration forums across the nation. Law360 named David both a “Trial Pro” and also a “Securities MVP,” noting his “artful and measured cross-examination style and his 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.” David has consistently been recognized as a New York Metro “Super Lawyer” since 2014.
David has litigated a broad range of complex commercial cases, including trials and arbitration hearings involving, among other things, financial fraud and malfeasance, breach of fiduciary duty, corporate governance and control contests, investment funds, partnership and alternative entities, energy, bankruptcy, unfair competition, contracts, employment, and structured financial products.
Examples of David’s experience include:
- Crestview v. Koch: In a 6-day trial in 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. See “Bill Koch Can’t Block Firm’s Oxbow Sale Demand, Judge Says,” Bloomberg, 2/12/2018 (“A judge ruled that billionaire William Koch can’t block Crestview Partners LP from forcing the sale of Koch’s Oxbow Carbon LLC so the private equity firm can cash out its $150 million investment in the energy company”).
- Quadrant v. Vertin: In a one-week trial in Delaware Court of Chancery, successfully represented defendants against allegations of breach of fiduciary duty, breach of contract, and fraudulent transfer. See Am Law Litigation Daily, 10/21/2015 (“a resounding win” in a “literal bet-the-company case” defeating claims “seeking hundreds of millions of dollars and a court order that would have forced [defendant] to liquidate all its assets and close its business entirely”). David also argued the appeal to the en banc Delaware Supreme Court which upheld the trial win. See “Del. High Court Affirms Athilon Win In Note Buyback Suit,” Law360, 11/1/2016.
- 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. See “UBS Team Hid Tanking FICO Scores From S&P, Judge Hears,” Law360, 4/19/16; “UBS Handed Setback in $2 Billion Mortgage Buy-Back Lawsuit,” Bloomberg, 9/6/2016.
- 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. See “Judge Rules Against JPMorgan in Suit Over Billionaire’s Losses,” NY Times, 8/26/13 (“In finding JPMorgan liable … Justice Schweitzer rejected the bank’s argument that ‘industry practice’ was to classify the home equity loans separately from mortgage securities because they carried different risks”); “JPMorgan Liable To Leonard Blavatnik Over Mortgage Losses,” Reuters, 8/26/13 (bank “ordered to pay more than $50 million of damages” plus interest).
- 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. See “MSR, Five Mile Trade Jabs Over IP Assets From $1.5B Sale,” Law360, 7/23/2013.
- 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 their confirmation plan in the District of Delaware Bankruptcy Court. The result, a $6 billion settlement, represented a significant distribution for Washington Mutual’s creditors. See “WaMu, JPMorgan Agree to $6 Billion Settlement,” The American Lawyer, 3/15/2010; “WaMu Shareholders and Trust Preferred Securities Holders Fall Short in Last-Ditch Attempt to Gut WMI’s Case for Plan Confirmation,” The American Lawyer, 12/7/2010.
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 has taught as a Guest Lecturer on Securities Regulation at Harvard Law School. He has taught as a Lecturer in Law at Columbia Law School. He is on the Executive Board of The Calhoun School, an independent school in New York City.
(J.D., magna cum laude, 1995)
Harvard Law Review:
Developments Editor & Supervising Editor, 1994-1995
(B.A., summa cum laude, distinction in History major, 1992)
Phi Beta Kappa
Partner & Co-Chair of Investment Fund Practice, 2006-2018
Miller & Wrubel
Wachtell, Lipton, Rosen & Katz
Law Clerk to the Hon. Amalya L. Kearse
United States Court of Appeals for the Second Circuit, 1995-1996
Top Rated Business Litigation Attorney in New York
(SuperLawyers, 2009-2010; 2014-2019)
MVP for Securities Litigation
Highest AV “Preeminent” Rating
(Martindale-Hubbell for Legal Abilities and Ethics in the Practice Area)
Guest Lecturer on Securities Regulation at Harvard Law School, 2019
Lecturer in Law at Columbia Law School, 2011-2018
Panelist, “International Arbitration: How To Win Your Arbitration And Enforce The Award.”
The Roosevelt Hotel, New York City, 10/1/13
Faculty Member and Lecturer, “Response to Ponzi Schemes: Alternative Investment Funds under Scrutiny,”
NYC PLI Center, 6/30/09
“Statute-of-Limitations Arbitrability: Departing from Rule”
New York Law Journal, 7/10/07
“Validity of Pacts with Arbitration Clauses: Courts Split”
New York Law Journal, 12/18/06
“Second Circuit Bucks Trend on Arbitration Subpoenas”
New York Law Journal, 7/6/06
“Arguing Arbitrability After ‘Buckeye’”
New York Law Journal, 4/7/06
“Public Policy Trumps Arbitration Clauses and Statutes”
New York Law Journal, 3/6/06
“Incorporation of Arbitration Clauses”
New York Law Journal, 1/6/06
“Expansive View of Territorial Reach of Arbitration Subpoenas”
New York Law Journal, 9/19/05
“Courts Split on Decision-Making Power Between Court, Arbitrator”
New York Law Journal, 7/22/05
“Federal Arbitration Act vs. New York State Arbitration Law”
New York Law Journal, 5/26/05
“District Split: Arbitrators, Non-Parties, Pre-Hearing Discovery”
New York Law Journal, 11/10/04
“Confronting the New Challenges of Scientific Evidence”
108 Harvard Law Review 1481 (1995) (co-author of Introduction)
“Excessiveness Review for Capital Defendants After Honda Motor Co. v. Oberg”
108 Harvard Law Review 1305 (1995)
“Punitive Verdicts – Judicial Review of Jury-Imposed Punishments”
108 Harvard Law Review 191 (1994)
“Arbitration – Consolidation of Separate Proceedings”
107 Harvard Law Review 499 (1993)
State Bar of New York
United States Courts of Appeals: First Circuit, Second Circuit
United States District Courts: Southern District of New York, Eastern District of New York