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Attorneys

David M. EisenbergView Bio as PDF

David Eisenberg has over thirty years of experience representing Fortune 100 and other companies in employment and labor law matters, consumer and general business litigation, and appellate litigation. He represents clients in the automotive, telecommunications, insurance, information technology, food and beverage, financial services, energy, healthcare, and human resources services industries.

David has defended wage-hour, employment discrimination, and consumer class action claims, and his appellate work includes cases on behalf of clients BSCR has represented at the trial court level, and preparation of amicus curiae pleadings for major industry organizations. He serves on the Editorial Board of the ABA Appellate Practice Committee, and on that Committee’s Appellate Rules subcommittee. David has been selected for inclusion in Missouri & Kansas Super Lawyers® every year since its inception in 2005.

Admissions

  • Kansas
  • Missouri
  • New York
  • Supreme Court of the United States
  • U.S. Court of Appeals, Second Circuit
  • U.S. Court of Appeals, Sixth Circuit
  • U.S. Court of Appeals, Eighth Circuit
  • U.S. Court of Appeals, Tenth Circuit
  • U.S. Court of Appeals, D.C. Circuit
  • USDC, Eastern District of Missouri
  • USDC, Western District of Missouri
  • USDC, District of Kansas

Education

  • Georgetown University Law Center, JD
  • Brown University, MA (Economics)
  • Brooklyn College, BA (Mathematics/Economics)

Memberships & Activities

  • Member, ABA Appellate Rules and Statutes Subcommittee, and Appellate Practice Journal Board of Editors
  • Member, ABA Committee on Appellate Practice
  • Member, ABA Litigation Section
  • Member, American Employment Law Council
  • ALFA Labor & Employment Practice Group
    • Member, Steering Committee
    • Program Chair, 2010 EPLI seminar (New York, NY)
  • Member, Missouri Organization of Defense Lawyers
  • Member, Helzberg Leadership Fellows
  • Former Member, Arbitration Panel, U.S. District Court, Eastern District of New York (10 years)
  • Former Co-Chair, ABA Subcommittee on Arbitration & Injunctions
  • Panel Chair, Advertising on the Internet, American Bar Association Annual Meeting Orlando, Florida, 1996)
  • Former Chair, ABA Subcommittee on Marketing & Advertising
  • Seminar Co-Chair, Telecommunications Law and Business Forum, American Conference Institute (New York City, NY 2001)
  • Seminar Co-Chair, Telecommunications 2002: Legal and Business Strategies for Navigating in Turbulent Markets, American Conference Institute (New York City, February 2002)

Publications

  • Contributing commentator, "Lawyers Weigh In On High Court ERISA Ruling," commenting on the Court’s decision in Tibble v. Edison (Law360, Lexis/Nexis, May 2015).
  • Contributing commentator, "Attorneys React to High Court’s Sarbanes-Oxley ‘Fish’ Ruling,” commenting on the Court’s decision in John L. Yates v. United States (Law360, Lexis/Nexis, February 2015).
  • Contributing commentator, "Lawyers React to High Court Ruling on Retaliation Suit," commenting on the Court's decision in University of Texas Southwestern Medical Center v. Nassar (Law360, Lexis/Nexis, June 2013).
  • Contributing commentator, "Class Action Attorneys React to High Court's Arbitration Ruling," commenting on the Court's decision in AmEx v. Italian Colors (Law360, Lexis/Nexis, June 2013).
  • Contributing commentator, "Class Action Attorneys React to High Court's Arbitration Ruling," commenting on the Court's decision in Oxford Health Plans LLC v. Sutter (Law360, Lexis/Nexis, June 2013).
  • Contributing author, "Employment Discrimination Law" (NBI 2011).
  • "Interlocutory Review of District Court Orders After Mohawk Industries," ABA Appellate Practice Journal, Vol. 30, No. 2 (Winter 2011).
  • Contributing author and regional editor: ALFA International Labor & Employment Practice Group Compendium of Significant Employment- Related Case Law and Statutes (2004-present).
  • "Opinion: The Proposed MCI-WorldCom Merger is Anti-Competitive," Global Competition Review (London), June-July 1998.
  • "Questions and Answers about Advertising on the Internet," The Practical Lawyer, Vol. 43, No. 5 (July 1997).

Presentations

  • Panel Moderator, ALFA 2014 International Client Seminar, Employment Class Action Litigation: New Strategies for New Challenges (Miami Beach, FL 2014)
  • Faculty, National Business Institute Seminar: Hot Topics in Employment Law and Non-Compete Agreements in Missouri and Kansas (Overland Park, Kansas, 2013)
  • Program Chair, ALFA International Seminar: Employer Liability -Stemming the Rising Tide (New York, NY 2010).
  • Faculty, Missouri Office of State Courts Administrator (OSCA) Judicial Seminar - Employment Law Update (Lake Ozarks, MO 2010).
  • Faculty, ALFA International Seminar: Failure to Provide Oversight and Breach of Fiduciary Duty (The Effect on Insurance Coverage) (New York, NY 2008).
  • Faculty, Kansas Bar Association Annual Meeting: Recent Developments in Employment Law (Overland Park, KS 2006).
  • Faculty, National Business Institute Seminar: Selecting and Terminating Employees in Kansas (Overland Park, Kansas, 2005).
  • Faculty, ALFA Labor & Employment Practice Group Seminar: The Myth of the 50-State Noncompetition Agreement (New Orleans, Louisiana, 2004).
  • Faculty, National Business Institute Seminar: Overtime-How the New Regulations Affect Your Clients or Your Company (Kansas City, Missouri, 2004).
  • Panel discussion: Another Federal Mandate? Restrictions on Cell Phone Use and Driving, National Conference of State Legislatures, Energy & Transportation Committee (San Antonio, Texas, 2001).
  • Panel discussion: Regulation of Emerging Technologies and Services in the Telecom Industry, KMB Video Journal (St. Petersburg, Florida, 2000).
  • Panel discussion: Web Design and Operations Issues, Mealey's Information Technology Law Conference (Chicago, Illinois, 1999).
  • Testimony: Hearing on Deceptive Mailings and Solicitations to Senior Citizens and Other Citizens, U.S. House of Representatives, Ways & Means Committee (Washington, D.C., 1992).

Awards & Recognition

  • Selected for inclusion in Missouri & Kansas Super Lawyers®, 2005-present.

News & Events

Eisenberg Comment Included in Law360 Article on High Court ERISA Ruling

05.20.15 | David Eisenberg was quoted in a recent Law360 article regarding the significance of the U.S. Supreme Court’s May 18, 2015 ruling in Tibble v. Edison International, where the High Court vacated a Ninth Circuit ruling that plaintiffs’ claims of alleged imprudent 401(k) plan investments were time-barred...

Law 360 Article Includes Eisenberg Comments on High Court’s Pregnancy Bias Ruling

03.26.15 | David Eisenberg’s commentary on the significance of the U.S. Supreme Court’s March 25, 2015 ruling in Young v. United Parcel Services Inc. was included in a Law 360 article entitled Attorneys React to High Court Pregnancy Bias Ruling.

Eisenberg Comments on High Court Sarbanes-Oxley Ruling

02.25.15 | David Eisenberg’s commentary on the significance of the U.S. Supreme Court’s February 25, 2015 ruling in John L. Yates v. United States was included in the Law 360 article entitled Attorneys React to High Court’s Sarbanes-Oxley ‘Fish’ Ruling. In the article, Eisenberg opined:

Eisenberg Comments on High Court Ruling on Retaliation Suits

06.26.13 | David Eisenberg's commentary on the significance of the U.S. Supreme Court's June 24 ruling in University of Texas Southwestern Medical Center v. Nassar was included in a Law 360 article (Lawyers React to High Court Ruling on Retaliation Suit) regarding the significance of the ruling, which requires workers bringing Title VII retaliation claims to show their employer would not have taken action against them had they not filed a complaint. . .

Law360 Article Includes Eisenberg Commentary on Supreme Court's Arbitration Decision in AmEx v. Italian Colors

06.24.13 | David Eisenberg was a contributing commentator to a Law 360 article on the significance of the U.S. Supreme Court's decision in American Express Co. et al. v. Italian Colors Restaurant, regarding the issue of class action arbitration waiver. Comments from David and attorneys across the country were included in the online publication on June 20, 2013 under the title "Attorneys React to High Court's Arbitration Ruling."

Law 360 Quotes Eisenberg on High Court Arbitration Ruling in Oxford Health Plans v. Sutter

06.12.13 | David Eisenberg was a contributing commentator to a Law 360 article on the significance of the U.S. Supreme Court decision in Oxford Health Plans v. Sutter, regarding arbitrabiity of class action claims. The article "Class Action Attorneys React to High Court's Arbitration Ruling" is available to Law 360 subscribers.

BSCR Sponsors Kansas City Friends of Chamber Music Benefit

05.14.12 | BSCR sponsored a table at the recent Friends of Chamber Music Soiree. The Friends of Chamber Music was established 35 years ago in order to introduce new artists, new art forms, and new musical literature to the Kansas City community. . .

Eisenberg to Serve as Course Book Editor for Upcoming ALFA EPLI Seminar

04.27.12 | BSCR attorney David Eisenberg is serving as the Course Book Editor for the 2012 ALFA International EPLI Seminar to be held in New York in June. The EPLI seminar is jointly sponsored by the Insurance, Labor & Employment and Professional Liability Practice Groups. . .

Eisenberg to Participate on ALFA International Client Seminar Panel

09.23.11 | At the 2012 ALFA International Client Seminar, David Eisenberg will appear on a panel that will discuss "Class Actions after Wal-Mart v. Dukes." The seminar, hosted by the Labor & Employment Practice Group, is scheduled for March 8-11, 2012 at the Westin Kierland Resort & Spa in Scottsdale, AZ.

Eisenberg to Speak on Employment Discrimination Law

05.04.11 | On May 11, David Eisenberg will be one of four attorneys speaking at a full-day seminar on Employment Discrimination Law in Overland Park, Kansas. David's portion of the seminar will cover best practices for avoiding discrimination and retaliation claims. . .

Rice and Eisenberg Serve as Regional Editors for State Employment Law Compendium

05.04.11 | Tom Rice and David Eisenberg are currently serving as a Regional Editors for the next edition of the ALFA State Employment Compendium. The Compendium will cover laws and significant developments on topics selected by the ALFA Labor & Employment practice group and will be published in advance of the 2012 ALFA International Client Seminar, at which the Labor & Employment group will be featured presenters. . .

BSCR Sponsors Friends of Chamber Music Benefit

03.24.11 | BSCR is a table sponsor for the upcoming May 14 Friends of Chamber Music Soiree, the organization's major annual fundraising event. The Friends of Chamber Music was established 35 years ago with the intent of introducing new artists, new art forms, and new musical literature to the Kansas City community. . .

ABA Appellate Practice Journal to Publish Eisenberg Article

03.24.11 | David Eisenberg's article "Interlocutory Review of District Court Orders, in the Wake of Mohawk Industries v. Carpenter" will be published in the Spring 2011 edition of the ABA Appellate Practice Journal.

Eisenberg Co-Chairs ALFA Labor & Employment Program

07.01.10 | David Eisenberg served as Co-Chair of ALFA International's program titled "Employer Liability: Stemming the Rising Tide", in New York City, June 16-18. The program was attended by 180 lawyers and insurance professionals, and was co-sponsored by ALFA's Labor & Employment and Insurance Practice Groups. . .

Blog Posts

Kansas Governor Rescinds Executive Order That Had Prohibited Discrimination Against State Employees Based on Sexual Orientation and Gender Identity

02.16.15 | In an action that has drawn significant national media attention, Kansas Governor Sam Brownback issued an Executive Order rescinding an Executive Order signed eight years earlier by then Governor Sebelius, which had prohibited discrimination against state employees based on sexual orientation or gender identity.

Columbia, Missouri Enacts “Ban-the-Box” Ordinance Applicable to Both Public and Private Employers

12.19.14 | This is the first ban-the-box ordinance in Missouri that applies to private employers.

Are FedEx Delivery Drivers Employees or Independent Contractors? The Kansas Supreme Court Applies the “20-Factor Test”, and Rules They Are Employees

11.06.14 | The Kansas Supreme Court, in Craig v. FedEx Ground Package System, clarifies the standard for determining whether workers are employees or independent contractors

EEOC Guidelines Expand Accomodation Requirements for Pregnant Employees

08.28.14 | The EEOC expands "reasonable accommodation" rights of pregnant employees.

NRLB General Counsel Authorizes Complaints against McDonald’s Franchisees, also naming McDonald’s USA as a Joint Employer

07.30.14 | NLRB General Counsel fires a shot across the bow of McDonald’s and other national franchisors.

Supreme Court holds that the whistleblower protections of the Sarbanes-Oxley Act apply to employees who work for contractors of public companies

03.05.14 | The Supreme Court resolves a split in authority, and opts for a broader reading of who may bring a whistleblower claim under SOX.

Tenth Circuit Reinstates Chemical Worker's Disability and Family Medical Leave Act Retaliation Claims

01.23.14 | Plaintiff furnished sufficient evidence to show that the employer's claim that he was fired for safety violations was a pretext for discrimination

Supreme Court to Rule on Challenges to the "Contraceptive Mandate" of the Affordable Care Act

12.19.13 | The high court is expected to resolve a circuit split on whether the owners of privately held secular companies, who oppose offering contraception-related benefits on religious grounds, may challenge these mandatory coverage requirements under the Religious Freedom Restoration Act

Missouri Supreme Court Creates Procedural Hurdles for Employers Seeking to Defend Untimely Claims

09.25.13 | The Missouri Supreme Court has repeatedly interpreted the Missouri Human Rights Act in a manner that makes it easier for plaintiffs to pursue claims, and harder for employers to defend them, than under similar federal anti-discrimination statutes. (See our March 20, 2013 report titled Burden of Proof in Retaliation Cases.) Here, once again, the Missouri Supreme Court diverges both from federal precedent and prior Missouri precedent, making it more difficult for employers to dismiss untimely discrimination complaints that are filed under the MHRA.

Tenth Circuit Applies U.S. Supreme Court Dukes and Comcast Decisions, and Decertifies Class Actions Based on Lack of Commonality

08.13.13 | The rigorous standards for class certification enunciated in recent U.S. Supreme Court decisions are being applied in the federal Circuit courts. Wal-Mart v. Dukes and Comcast require strong proof of "commonality" and other FRCP Rule 23 elements, at the class certification stage, even if this overlaps with the merits of the case.

Eighth Circuit Weighs In on CAFA Removal, and the "Other Paper" Clause

07.26.13 | Exactly when, during the course of a state court class action, that case may have become removable to federal court, can be a tricky question. Defendants must act within 30 days from when it can "first be ascertained that the case is one which is or has become removable", or forfeit their right to remove. On the other hand, if the court deems a removal premature, the case may be remanded.

U.S. Supreme Court rules on burden of proof in Title VII retaliation cases, and "supervisory" status for purpose of determining potential employer vicarious liability

06.25.13 | Two important decisions that can limit the scope of employer liability in Title VII cases; less clear how helpful these decisions will be in cases brought under the Missouri Human Rights Act.

Kansas Supreme Court: Private parties cannot contractually shorten the statute of limitations for retaliatory discharge when the employee claims she was fired for exercising rights under the KS WCA

06.12.13 | When the reason for termination falls within the "public policy" exception to the employment-at-will doctrine, parties cannot contractually shorten the two-year Kansas statute of limitations for commencing a retaliatory discharge action

New Supreme Court Ruling on "Chevron deference" may impact future labor and employment law developments

05.30.13 | In the future, courts may be obliged to give broader deference to EEOC, NLRB, and U.S. Department of Labor interpretations of the agencies' own authority. The recent U.S. Supreme Court decision in City of Arlington v. FCC, - U.S. - , No. 11-1545 (U.S. May 20, 2013) involved the validity of a Federal Communications Commission ruling on the regulation of wireless towers and antennas. . .

Eighth Circuit Disallows New Evidence from FLSA Plaintiffs, First Proffered in their Summary Judgment Opposition Papers, and Grants Summary Judgment

05.10.13 | When a plaintiff, in his summary judgment opposition papers, attempts to first introduce information that should have been part of his Rule 26 disclosures (or supplements to them), defendant should move to strike.

The Importance of "Clawback Agreements"

04.26.13 | You're in court, dealing with a lawsuit that will include extensive e-discovery. Have you provided for a "clawback" agreement? The Judges and Magistrates of U.S. District Court for the District of Kansas have recently begun instructing lawyers appearing before them in Rule 26(f) conferences that they consider it malpractice for parties not to have a clawback provision included in the submitted draft Scheduling Order.

Kansas Supreme Court Clarifies Standard for Determining if an Injury Arose "Out of and in the Course of Employment", for Purposes of Workers Compensation Benefit

04.17.13 | The Kansas Supreme Court has recently clarified the legal standard for determining if an employee injury at a company-sponsored social event arose "out of and in the course of employment", thus making the employee eligible to receive Workers Compensation benefits.

FLSA Arbitration Clause that includes Class Action Waiver Held Enforceable by Eighth Circuit

04.03.13 | In Owen v. Bristol Care, Inc., 702 F.3d 1050 (8th Cir. 2013), the Eighth Circuit recently held that an arbitration agreement that included a class action waiver provision was enforceable under the Fair Labor Standards Act. In so ruling, the Eighth Circuit squarely rejected the NLRB's holding in D.R. Horton that such waivers are unenforceable because they violate employee rights under Section 7 of the NLRA.

Forum Selection Clauses and Personal Jurisdiction

03.27.13 | For determining whether a court has personal jurisdiction over a named party, there is a crucial distinction between a contractual choice-of-law clause and a forum selection clause. In Hope's Window, Inc. v. McClain, - S.W.3d - , case no. WD75137 (Mo.App. W.D. March 19, 2013). . .

Burden of Proof in Retaliation Cases

03.20.13 | Employers around the country are eagerly waiting for the U.S. Supreme Court to rule on the appropriate standard of proof for Title VII retaliation claims, in University of Texas Southwestern Medical Center v. Nassar . What does this mean for Missouri employers? Less than you might think.

Chiefs Rally (in the courtroom)

03.11.13 | In the wake of the Chiefs' recent courtroom setback in which their arbitration agreement with employees was held unenforceable (see post Kansas City Chiefs Start the Season 0-2), the Chiefs recently went to trial in an age discrimination case filed by a 61-year old maintenance manager with 12 years of service. . .

Kansas City Chiefs Start the Season 0-2

03.04.13 | On February 26, 2013, the Missouri Court of Appeals, Western District ruled on the cases of two former Kansas City Chiefs employees who had been terminated, and had filed complaints of age discrimination. In one case, the day after she was hired, the employee (a Community Relations Director) was directed to sign an agreement requiring that any dispute. . .

Non-Compete Agreements in Missouri: The Missouri Supreme Court (Once Again) Explains it All

12.21.12 | Those of us who practice employment law find ourselves, with increasing frequency, dealing with the preparation and negotiation of employee non-compete agreements, and the handling of disputes concerning such agreements. A "non-compete agreement" is any restrictive covenant entered into between employer and employee that restricts post-employment activities of the employee. . .

Failure to Follow Appellate Briefing Rules Can Lead to Draconian Consequences

09.25.12 | Appellate litigants should carefully - very carefully - consult their appellate court's rules on briefing, before sitting down to write, and especially before filing. The Missouri appellate courts have recently reminded practitioners that a failure to observe the briefing rules can be fatal to a client's substantive rights. . .