By Emily Jackoway | November 28, 2022
A single trial can take multiple years of a lawyer’s sole focus. So, when they had four trials and arbitrations last year alone, you’d think the attorneys at Selendy Gay Elsberg might be slowing down heading into next year. But with five trials slated for 2023 already, the team is racing ahead.
They love it. The courtroom is where they thrive.
This year’s trials have been in areas ranging from energy to financial services, and next year’s include cases for investment firm and life sciences clients. The firm’s litigation practice areas are widespread – from general commercial to white-collar to securities to insurance – and the firm practices on both sides of the V. Selendy Gay Elsberg has proven that curating a team of litigation generalists can be extremely helpful to clients: They’ve seen significant wins in every sector.
A Selendy Gay Elsberg lawyer is a trial lawyer, through and through. And the firm’s bankruptcy practice, which involves a majority of its attorneys, is no exception.
Because of that trial-first mindset, managing partner Maria Ginzburg explains that the team’s approach to bankruptcy litigation is more rigorous than the usual “let’s cut a deal” routine.
“We are a hardcore litigation firm,” she says. “Litigations and investigations are what we do. So, we come at bankruptcy from the point of view of being trial lawyers.”
Among the most high-profile of the firm’s cases is their current representation of the liquidators of what was the largest feeder fund in Bernie Madoff’s infamous $65B Ponzi scheme, Fairfield Sentry Limited. In these cases, the team is suing more than 1,000 defendants in more than 300 actions.
Selendy Gay Elsberg’s team has defeated a series of motions by the defense to get the claims thrown out of court. They succeeded in beating back multiple motions to dismiss, keeping the complaints in court and paving the way for the firm to continue to pursue billions of dollars in clawback claims. In total, Selendy Gay Elsberg and co-counsel Brown Rudnick are seeking to recover more than $6B to be distributed to those affected by the scheme. David Elsberg, name partner and lead counsel on the Fairfield cases, says, “We have a determined team of trial lawyers vigorously pursuing recovery for innocent victims of this scheme.”
Partner David Flugman has worked on cases related to the scheme since litigation began in 2008. Before joining Selendy Gay Elsberg, he was instrumental in representing the Joint Official Liquidators of Herald Fund SPC, a Madoff feeder fund in the Cayman Islands, in clawback litigation brought by the Madoff trustee. He and his team successfully resolved the clawback claims and obtained a $1.6B claim under the Securities Investor Protection Act, and now, Flugman brings that experience to Selendy Gay Elsberg’s work on the Fairfield cases.
In the Fairfield cases, as in many other large proceedings, the attorneys collaborate with other firms to achieve the best results possible. They are known for their capacity for collaboration, which is aided by their unique firm structure.
The partners also bring their defense-side capabilities to their bankruptcy work. For example, early in the life of the firm, the partners represented a precious metals mining company that found itself with a significant bailment and reclamation claim in the Chapter 11 insolvency of a major refining company. Bringing the firm’s signature analytical skills to bear, and its experience on both sides of the V, it guided the company to a settlement that resolved both the client’s creditor claim and significant potential clawback exposure before any adversary proceeding was filed.
With all the partners and associates close, they can work together with a speed and efficiency that outperforms bulky, widespread firms.
The magnitude of cases like Fairfield Sentry and others might seem to require the heft of a Big Law firm, but Selendy Gay Elsberg brings a depth to its bankruptcy approach that belies the firm’s small size. The firm operates out of a single New York office – by design. With all the partners and associates close, they can work together with a speed and efficiency that can outperform bulky, widespread firms.
“When we are brought in, time is usually of the essence,” explains founding partner Lena Konanova. “A statute of limitations is about to expire, or other fast-moving bankruptcy procedural reasons require tackling something very quickly, and then we’re able to scale up without sacrificing quality.”
In doing so, they tackle cases across the country and internationally, while building a game plan from within their central hub. In one international example, the team is just beginning litigation on behalf of a trustee of a litigation trust coming out of the Puerto Rico bankruptcy proceeding, in which they are suing 13 major banks. The trustee is making claims on behalf of the Commonwealth that misconduct by these big banks led to the territory’s deepening insolvency. In this litigation, the team is going to bat for unsecured creditors, most of which are island businesses or individuals on the island – “mom and pop” creditors, as Ginzburg explains. “It’s not just about moving money between sophisticated players in New York. It affects the people of Puerto Rico,” she says.
The firm wields its size to multi-faceted advantage. Because it has no corporate or tax departments, it has fewer conflicts than many major players in the bankruptcy space. With a sole focus on litigation, the lawyers don’t need to worry about taking an aggressive litigation position that might be averse to a corporate client, which gives them a leg up in trial.
Elsberg, who has handled a large number of adversarial proceedings in bankruptcy court, explains, “We don’t have departments other than our litigation practice. We have a reputation for being a firm that will go all the way through a trial if we don’t get a settlement that our client believes is right. Our calling card is that we go in to litigate and win.”
The team’s nimbleness, attention to detail and adaptability has allowed them to scale up to take on the largest of matters. The large number of adversarial proceedings handled by Elsberg 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.
While many attorneys at the firm are involved in bankruptcy litigation, they are actively involved in other practice areas. As Flugman explains, “The skillsets that make us sharp in one practice area are very much conducive to another. So, it’s very organic. I don’t think of my bankruptcy practice and the rest of my practice separately. I think of them together.”
Nowhere is that dovetailing more prominent than in client relationships that cross practice areas. One such client is Nexstar Broadcasting, the largest owner of television stations in the U.S.
Flugman and name partner Jennifer Selendy represented Nexstar in a breach of contract dispute that was being litigated in New York State Court. A year later, the station operator, Marshall Broadcasting, declared bankruptcy. The federal bankruptcy petition was filed in the Southern District of Texas – a playing field the firm was already familiar with.
So, rather than assign a different group of lawyers to the second matter, the attorneys worked both matters at the same time.
They litigated in both New York and Texas, synchronizing until the cases felt like part of one another. It was “a seamless transition from litigating in a state trial court into the bankruptcy court, where the substantive issues overlapped but were procedurally quite different,” Flugman says. “We were able to work within both systems in order to achieve a great result for the client.”
We have a reputation for being a firm that will go all the way through a trial if we don’t get a settlement that our client believes is right. Our calling card is that we go in to litigate and win.”
The firm is growing quickly, and in 2022 it welcomed first a summer class of 24 and in the fall, their largest-to-date class of new associates; there are now 60 partners and associates at the firm. Uplifting new talent is one of Selendy Gay Elsberg’s highest priorities, and the partners are committed to giving associates early and frequent substantive experiences out front.
From day one, first-year associates join in on meetings with partners and clients and participate in the decision-making process. This level of respect for younger lawyers can come as a surprise to the junior ranks.
“Associates can be thrown off because they weren't expecting to have their view taken so seriously,” says Konanova. “But they learn very quickly that in our firm, if you're on a case, we want you to be thinking about the entire case – looking around corners, being creative and talking to people about it. Associates quickly get used to it, and they love it.”
Konanova leads the firm’s associate training program, an initiative that includes stand-up trial experience as well as intensive trainings on writing, deposition and trial skills. The partners train their associates to be litigation generalists, but with a depth of knowledge and experience in each practice area that surpasses that of most young lawyers.
Outside of just educating the associates, partners also work to make sure they stand up in trial: “Every week we have a meeting and one of the items on the standing agenda is associate experiences and making sure that everybody has lots of opportunities repeatedly,” says Elsberg. The firm’s efficiency is boosted by its associates’ ability to take point on substantive parts of cases, and clients receive the benefit of more well-trained minds working on their case.
That emphasis on a flat structure and promoting opportunity stretches into the firm’s culture and litigation work, as well.
Selendy Gay Elsberg is known for their deep commitment to diversity and inclusion in the workplace. Nearly half of the firm’s equity partners, including two of the four name partners and the firm’s managing partner, are women (compared to an average of just under 26 percent within Big Law) and while 3.67 percent of attorneys identify as LGBTQ+ in Big Law, nearly a quarter of Selendy Gay Elsberg’s attorneys are part of the LGBTQ+ community.
In an effort to expand opportunities to more marginalized groups, the firm also recently launched a fellowship devoted to hiring and training young lawyers from traditionally underrepresented backgrounds.
The firm is also heavily involved in pro bono and public service matters in every practice area, including bankruptcy. Recently, the firm represented a group of families whose children were victims of the Sandy Hook Elementary School shooting. The families are seeking to preserve claims brought against firearms manufacturer Remington Outdoor Co., despite the company’s filing for Chapter 11 bankruptcy protection.
“Behind these multibillion-dollar bankruptcies, there are real people."
Remington was the maker of the weapon used in the shooting, which took the lives of 20 children and six adults. Selendy Gay Elsberg was able to secure a path for the families to continue litigation efforts against the company, ultimately leading to a $73M settlement for the victims in February 2022.
The commitment to pro bono and public interest initiatives is part of what the partners love about bankruptcy litigation. While these pro bono cases are a clear example of the power of bankruptcy litigation to give individuals agency, even the firm’s larger corporate litigations involve a deeply personal element. “Behind these multibillion-dollar bankruptcies, there are real people,” explains Flugman.
The lawyers also find the cases endlessly exciting. As Ginzburg says, bankruptcy cases are a “fast-moving opportunity to dive in, get the evidence, present your situation and get to a result. We thrive on that.”
Every attorney at Selendy Gay Elsberg feels the thrill of litigation. As Elsberg puts it, “It's hard not to have your blood pumping when you're at a trial.”