David Elsberg

Work Highlights

Won trial victory in New York federal court on behalf of U.S. Bank in an RMBS trustee putback action, which resulted in a recovery of $850 million, the largest recovery ever in such a case.

Won trial victory after a one-week trial in the Delaware Court of Chancery on behalf of Athilon Capital Corp. and its board of directors in Quadrant v. Vertin defeating breach of fiduciary duty, breach of contract, and fraudulent transfer claims which sought hundreds of millions of dollars in damages, as well as a court order that would have forced the client to liquidate its assets and close down the business entirely. The Court issued a post-trial decision that denied all the relief Quadrant requested and permitted Athilon to continue executing the long-term business strategy that Quadrant challenged at trial. The press described this trial victory as a “resounding win” in a “literal bet-the-company case” that set precedent concerning the test for insolvency under Delaware law and that was affirmed by the Delaware Supreme Court.

Won trial victory after a six-day trial in the Delaware Court of Chancery on behalf of Crestview Partners against billionaire William Koch, defeating fiduciary duty claims and enforcing Crestview’s contractual put and exit-sale rights in connection with Crestview’s investment in Oxbow Carbon.

Won trial victory in New York State court on behalf of American industrialist Len Blavatnik on his claims that JPMorgan violated its obligations under agreed-upon investment guidelines by misclassifying securities backed by risky subprime loans as “asset-backed” rather than “mortgage-backed” securities.

Won arbitration victory on behalf of Rosen Capital on its claims against Bank of America/Merrill Lynch which wrongfully prevented Rosen Capital from executing its options volatility trading strategy. The award was one of the largest investor awards on record.

Won arbitration defense victory in a Texas arbitration awarding claimant $0, successfully defending against a $1 billion claim by a pipeline company arising from an alleged natural gas dedication obligation.

Won defense victory in international arbitration awarding claimant $0 in a dispute concerning expropriation of exploration rights.

Won dismissal of all claims against executives of Paulson & Co.’s MSR Hotels & Resorts alleging breach of fiduciary duties in connection with the sale of four luxury resorts after a three-day hearing in U.S. Bankruptcy Court in Southern District of New York.

Won complete dismissal of claims brought in New York State court alleging that investment fund allegedly breached a letter of intent and an asset purchase agreement by declining to move forward with the purchase of a business.

Represented the ResCap Liquidating Trust in Minnesota federal courts against dozens of loan originators seeking damages arising from the sale of defective mortgage loans, resulting in recoveries of $590 million.

In connection with the largest bank failure in history, successfully represented debtor Washington Mutual against challenges to its confirmation plan in the Delaware federal bankruptcy court, which resulted in a $6 billion settlement benefitting Washington Mutual’s creditors.

Successfully represented foreign representatives of several foreign funds in liquidation in Chapter 15 proceedings in Bankruptcy Court for the Southern District of New York, the U.S. District Court, and Second Circuit, in avoidance, common law, and breach of contract actions seeking to recover about $6 billion in redemption payments in the Madoff scheme made to hundreds of entities.

Career

David is a “go-to” trial lawyer with decades of successful experience trying cases through final judgment or verdict, as well as 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 notes David’s “impress[ive] … ability to communicate with the court very effectively." 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.”

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 New York federal and state courts and 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