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.
- 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
- Georgetown University Law Center, JD
- Brown University, MA (Economics)
- Brooklyn College, BA (Mathematics/Economics)
News & Events
| avid Eisenberg was quoted in a May 18, 2016, Law360 article “Attorneys React To DOL's Final Overtime Exemption Rule” regarding the significance of the U.S. Labor Department’s issuance of the final version of the overtime exemption rule raising the minimum salary threshold to qualify for the Fair Labor Standards Act’s white collar exemption. Eisenberg commented...
| 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...
| 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.
| 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:
| 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. . .
| 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."
| 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.
| Baker Sterchi Cowden & Rice was a table sponsor 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
| 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. . .
| 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.
| 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. . .
| 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 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. . .
| 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.
| 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. . .
BSCR, working with our client's national counsel, Sullivan & Cromwell, obtained dismissal of a case filed by the State of Missouri, which sought more than $1 billion in damages. The Circuit Court for the City of St. Louis held that the state environmental claims were preempted by the "clear language" of the federal Clean Air Act.
In a Missouri Merchandising Practices Act case in which the plaintiff class alleged that our automotive client had engaged in misrepresentation when it described certain vehicles as luxury or premium vehicles (among other similar statements), when...
BSCR’s health insurer client was sued in Missouri state court in 2011, by a plaintiff who suffered injuries in a car accident. Plaintiff was a federal government employee, whose insurance program fell under the Federal Employees Health Benefits Act (FEHBA), a statute with
In a class action brought by plaintiffs in Missouri state court, alleging certain vehicles had defective dashboards, and that our automotive client misrepresented the vehicles to consumers, the Circuit Court of Jackson County originally certified a Missouri class, for claims under the Missouri Merchandising Practices Act and breach of express warranty and implied warranty.
BSCR’s health care services company client and another defendant were sued in Kansas Federal Court in 2012 by a competitor alleging antitrust tying and exclusive dealing.
| While we regularly report to our readers on significant case law developments in the labor and employment field, the most dramatic developments in Missouri, over the past year, have played out in the legislative arena.
| The recent United States Supreme Court decision China Agritech, Inc. v. Resh, 201 L. Ed. 2d 123 (2018), sensibly resolved some existing confusion about the tolling effect that a putative class action creates for the members of a proposed class.
| In a closely watched and long-awaited ruling, the U.S. Supreme Court on May 21st held that it is lawful for an employer, in an agreement with an employee, to provide that all disputes be resolved through one-on-one arbitration between the company and the employee.
| The U.S. Supreme Court rejects yet another creative state court end-run on arbitrability.
| On May 18th, the U.S. Department of Labor issued its final overtime exemption rule, raising the minimum salary threshold to qualify for the Fair Labor Standards Act's white collar exemption to $47,476 per year. The regulation takes effect on December 1st. Between now and then, employers have an important decision to make for their white collar employees whose earnings are near the new threshold.
| On April 11th, Missouri Governor Jay Nixon signed an executive order requiring that state departments, agencies, and boards and commissions under the executive branch remove questions about criminal history from the initial job applications of prospective employees.
| We are often asked by clients if there is anything they can do to keep Plaintiff's counsel from speaking with managers who are no longer with the company. A recently published Missouri Informal Advisory Opinion on Legal Ethics (Opinion 2013-01) addresses this subject.
| 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.
| This is the first ban-the-box ordinance in Missouri that applies to private employers.
| The Kansas Supreme Court, in Craig v. FedEx Ground Package System, clarifies the standard for determining whether workers are employees or independent contractors
| The EEOC expands "reasonable accommodation" rights of pregnant employees.
| NLRB General Counsel fires a shot across the bow of McDonald's and other national franchisors.
| The Supreme Court resolves a split in authority, and opts for a broader reading of who may bring a whistleblower claim under SOX.
| Plaintiff furnished sufficient evidence to show that the employer's claim that he was fired for safety violations was a pretext for discrimination
| 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
| 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.
| 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.
| 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.
| 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.
| 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
| 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. . .
| 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.
| 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.
| 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.
| 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.
| 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). . .
| 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.
| 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. . .
| 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. . .
| 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. . .
| 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. . .