Dave represents private/public, K-12, and post-secondary educational institutions in litigation, administrative hearings, regulatory investigations (including OCR complaints), compliance issues, board governance matters, employment matters, student matters, special education disputes, policy advice, and day-to-day issues of all stripes. In addition, Dave develops policies, procedures, and training designed to assist clients in avoiding litigation and other legal pitfalls, including drafting/revising policy handbooks, offering compliance training on statutory and other legal requirements, and issuing alerts on emerging legal developments affecting clients.
Dave is also an experienced business litigator, representing national and local clients in high-stakes litigation before state and federal trial and appellate courts on a variety of claims, including class actions, commercial leasing disputes, employment claims, professional negligence claims, and other complex contract and tort claims arising from business-related disputes.
Education Law Experience. In representing educational institutions, Dave serves in an ongoing and/or recurring General Counsel role. He provides training, policy review, contract advice, and general legal guidance aimed at helping these clients ensure regulatory compliance, implement best practices, prevent lawsuits, and effectively defend themselves when litigation is necessary.
School law experience includes:
- Securing complete victory for a school district client, in a contentious, twelve-day special education, due process hearing, involving the largest and most complicated record in the history of such proceedings in Arizona.
- Securing dismissal with prejudice on claims against a community college alleging violations under the Establishment Clause and Arizona Constitution relating to instruction in a philosophy class.
- Successfully representing school districts in multiple employee termination proceedings, including termination of certificated teachers, principals, and superintendents. Dave has often simultaneously defeated efforts in parallel judicial proceedings to seek temporary restraining orders and otherwise challenge the administrative proceedings.
- Successfully representing school districts and post-secondary schools in multiple student expulsion hearings with a track record of defending such expulsions in federal court and securing dismissal of all claims.
- Securing for post-secondary schools the dismissal of complaints filed against the school by the Arizona State Board for Private Post-Secondary Education.
- Drafting and revising student handbooks and policy manuals, including comprehensive student disciplinary policies and procedures.
Dave also provides frequent training and day-to-day advice on compliance issues, including public records requests, open meeting law issues, FERPA/student records, child abuse reporting, student discipline/student misconduct (due process, search/seizure, etc.), school/community relations, procurement, student admissions/open enrollment, special education, and many others.
Business Litigation and Alternative Dispute Resolution Experience. Dave represents businesses in a broad array of commercial disputes. His experience includes breach of contract claims, professional negligence claims, employment disputes, defamation claims, express/implied warranty claims, business divorce matters, creditor remedies in secured financing matters, judicial appeals of administrative proceedings, commercial landlord/tenant issues, and many others. To help clients avoid the time and cost of litigation, Dave has also successfully resolved many commercial disputes to favorable settlements through direct negotiation and mediation.
Some of his representative business litigation experience includes:
- Secured a complete defense verdict on behalf of an international insurance brokerage on a $90 million negligence claim, alleging the broker's failure to procure appropriate insurance coverage. The favorable judgment followed nearly three years of litigation, involving seven experts, two dozen depositions across the country, and over 1.3 million documents. After eliminating nearly $70 million in claimed compensatory and punitive damages through successful motion practice, a nine-day trial ensued on the remaining $21 million claim. In an eighteen-page ruling issued after post-trial briefing, the court thoroughly rejected each of the plaintiff's arguments and theories, and ruled in our client's favor in every respect. The defense verdict was upheld on appeal in a published decision. BNCCORP, Inc. v. HUB Int'l Ltd., 243 Ariz. 1, 400 P.3d 157 (App. 2017), review denied (Mar. 20, 2018).
- Obtained summary judgment and a multi-million dollar result for a real estate investment trust against a commercial tenant in Atlanta, Georgia. The federal judge wrote that this case "represents a contractual dispute of biblical proportions."
- Obtained judgment in favor of an electric utility, requiring the Arizona Corporation Commission to return an improperly imposed multi-million dollar fine, with interest, and an award of attorneys’ fees. Dave also successfully defended the trial court’s judgment on these issues at the Arizona Court of Appeals.
- Successfully managed a complex federal interpleader action concerning $12 million in escrowed funds and involving nearly 100 parties from around the globe. In connection with this matter, Dave secured dismissal of multiple counterclaims and cross-claims directed at the escrow holder.
- Represented the State of Arizona and State Board of Education in multiple evidentiary hearings and appellate proceedings concerning education of English Language Learners in compliance with the Equal Educational Opportunities Act (EEOA).
Religious Institutions Experience. Dave's education law practice includes representing parochial and other religious schools in a broad spectrum of employment, student, and policy issues. In addition, Dave has represented a public community college district in litigation challenging the curriculum of a college-level ethics and philosophy class under the Establishment Clause. Dave negotiated a complete dismissal of the plaintiff’s claims with no monetary payout and no agreement by the community college to alter any of its policies, practices, or procedures.
Class Action Experience. Dave has significant experience successfully litigating class action cases on behalf of financial institutions and insurance companies. He also has experience negotiating class action settlements and helping clients navigate the associated judicial approval process.
Some examples of his recent class action work include:
- Defeating class certification and obtained partial summary judgment for an auto insurer in litigation challenging computerized bill review in medical payments claims.
- Defeating class certification for an auto insurer in litigation challenging use of med pay offsets in underinsured motorist claims.
- Obtaining dismissal with prejudice, without certification, of a class action alleging that an auto insurer took arbitrary, percentage deductions from “actual cash value” when adjusting vehicle total loss claims.
- Obtaining dismissal with prejudice, without certification, of a class action alleging that a credit union failed to provide proper ATM fee notifications under the Electronic Funds Transfer Act (EFTA).
Professional Activities
J. Reuben Clark Law Society, International Chair of Leadership Development Committee (November 2021-present); Annual Conference Co-Chair (2020); Greater Phoenix Chapter Board (2017-present); Board Chair (June 2021-present)
State Bar of Arizona, Religious Liberty Law Section, (Section Chair, 2017-2018) Executive Council, 2016-present
State Bar of Arizona, Class Action & Derivative Suits Committee, Member, 2012-2014
American Bar Association, Class Action & Derivative Suits Committee, Subcommittee Chair on Emerging Issues, 2012-2015
Community Activities
Arizona Council of School Attorneys, Member, 2001-present
Boy Scouts of America, various positions, including Assistant District Commissioner, 2007-present
National School Boards Association, Member, Council of School Attorneys, 2001-present
Ross Farnsworth East Valley YMCA, Board Member, 2012-2018; Board Chair 2016-2017
Foundation for Blind Children, Board Member, 2007-2010
CEFPI Foundation & Charitable Trust, Board of Trustees Member, 2006-2012
Client Alerts
- Client Alert: New Guidance from OCR for K-12 Schools regarding COVID-19 and Civil Rights, October 8, 2020
- Client Alert: ADE/ESS COVID-19 Special Education Webpage and Q&A, March 25, 2020
- Client Alert: UPDATED Guidance from OCR and OSERS re COVID-19 and Students with Disabilities (As of March 23, 2020)
- Client Alert: Guidance on Serving Students with Disabilities During COVID-19-Related School Closures, March 20, 2020
- Client Alert: Public Records Violation Results in Six-Figure Fee Award, September 12, 2019
- Client Alert: OCR Backtracks on March 2018 Updates to Case Processing Manual, December 7, 2018
- Client Alert: State Board of Education Approves New Handbook Resource for Dyslexia, April 3, 2018
- Client Alert: New OCR Case Processing Manual Is More Favorable to Schools, March 15, 2018
- Client Alert: Charter Schools Cannot Cap Enrollment of Students with Disabilities, October 23, 2017
- Client Alert: New Arizona Law Set to Give Schools Greater Flexibility in the Delivery of Special Education, June 21, 2017
- Client Alert: U.S. Supreme Court Issues Special Education Ruling Addressing FAPE Standards, March 22, 2017
Publications
- Independent Educational Evaluations: Your Top 10 Questions Answered! Inquiry and Analysis, COSA, December 2018
- Developing Admissions and Enrollment Policies for your Public Charter School, Arizona Charter Schools Association, July 2017
- Case Note, "Impact of Conditional Incentive Awards on Adequacy of Representation in Class Settlements: Radcliffe v. Experian Info. Solutions, Inc.," No. 11-56376 (9th Cir., April 22, 2013), ABA Class Actions and Derivative Suits website, May 2013.
- Case Note, "Cost-sharing by plaintiffs in connection with pre-certification discovery: Boeynaems v. LA Fitness International LLC," No. 10-2326 (E.D. Penn. Aug. 16, 2012), ABA Class Actions and Derivative Suits website, September 2012.
- Case Note, "Preemption of state laws purporting to invalidate class action waivers: Pendergast v. Sprint Nextel Corporation," No. 09-10612 (11th Cir., Aug. 20, 2012), ABA Class Actions and Derivative Suits website, September 2012.
- “Socratic Misogyny? - Analyzing Feminist Criticisms of Socratic Teaching in Legal Education,” Brigham Young University Law Review 1597 (2000).
- “The Continuing Vitality of the Case Method in the Twenty-First Century,” Brigham Young University Education and Law Journal 307 (2000).
- “A Failed Coup on the Judicial Monarchy,” Book Note, Brigham Young University Law Review 887 (1999).
- Bulgarian Grammar Supplement, Missionary Training Center (1993).
Seminars/Presentations
- The New World of K-4 Discipline under HB2123 (A.R.S. § 15-843(K)), aka, “We-Really-Really-Really-Don’t-Want-You-To-Suspend-Or-Expel-Young-Kids Act,” December 2021
Presenter, OM Client Webinar
- Disciplining Students With Disabilities in Compliance with IDEA and Section 504, December 2021
National Webinar Presenter, LRP Education Webinars
- The Ecclesiastical Abstention Doctrine in Ball v. Ball: A Case Study on the Limitations of Judicial Intervention into Religious Disputes, December 2021
Presenter, Arizona State Bar Webinar (Phoenix, AZ)
- Legal Grab Bag: Things to Keep Your Eyes On!, October 2021
Co-Presenter, OM Lunch and Learn Lecture Series
- Don’t Shoot Yourself in the Foot: Top 10 Ways Schools Sabotage Themselves in Due Process—And How to Avoid Them, September 2021
Presenter, Arizona School Boards Association, Annual Law Conference (Phoenix, AZ)
- The Legal and Practical ABCs of FBAs and BIPs in Remote and Hybrid Settings, April 2021
LRP’s National Institute 2021 (Virtual)
- Shaking in My Boots: Ethically and Effectively Preparing Reluctant School Witnesses for Due Process, January 2020
Presenter, LRP Special Education School Attorney Conference (New Orleans, LA)
- Achoo!!! Serving Students with Allergies & Handling Immunization Issues Without Getting a Legal Rash, October 2019
Presenter, NSBA Council of School Attorneys (COSA) Law Seminar 2019 (Santa Fe, NM)
- Religious Expression in Schools and the Public Square, September 2019
Panelist, J. Reuben Clark Law Society, Salt Lake City Chapter, Fireside (Salt Lake City, UT)
- Student Discipline under the IDEA: From the FAPE-Free Zone to Special Circumstances Removals, and Everything in Between, September 2019
Presenter, Pacific Northwest Institute on Special Education & the Law (Seattle, WA)
- Section 504: The Special Education Law that Affects the Most Students (and Staff), September 2019
Presenter, Arizona School Boards Association, Annual Law Conference
- Roundtable on Working with OCR under OCR’s Updated Case Processing Manual, September 2019
Presenter, Arizona School Boards Association, Annual Law Conference (CLE Track)
- Civility in the Religious Liberty Debate & Religion in the Public Schools, June 2019
Presenter, Arizona State Bar Convention, Breakfast CLE
- “Dear Santa, I Can Explain” ... When Students Claim a Disability Only After an Expellable Offense, May 2019
Presenter, LRP’s National Institute 2019 (Orlando, FL); Presenter, Arizona Charter Schools Association, Legal Week 2019
- “You're Anxious; I'm Anxious; We're ALL Anxious” - Meeting the Needs of Students With Anxiety, May 2019
Presenter, LRP’s National Institute 2019 (Orlando, FL); Presenter, Arizona Charter Schools Association, Legal Week 2019
- I Spy with My Little Eye: Ensuring Compliance with Your Child Find Obligations under the IDEA and Arizona Law, March 2019
Presenter, Arizona Charter Schools Association Governance Week
- Applying Motion Practice and the Rules of Civil Procedure to Administrative Proceedings, March 2019
Moderator, Bench and Bar CLE, State Bar of Arizona, Administrative Law Section
- Deep Dive into Student Discipline--Special Education Edition, February 2019
Presenter, OM Lunch and Learn Lecture Series
- A Kinder, Gentler OCR?: Tools and Strategies for Responding to Complaints under OCR’s Updated Case Processing Manual, January 2019
Presenter, LRP Special Education School Attorney Conference (Phoenix, AZ)
- Independent Educational Evaluations: Your Top 10 Questions Answered!, October 2018
Presenter, Council of School Attorneys (COSA) Webinar
- FBAs and BIPs: Staying Compliant and Addressing Misconduct With a Positive Approach, October 2018
National Webinar Presenter, LRP Education Webinars
- Family Law Within the Schoolhouse Gates, September 2018
Presenter, Arizona School Boards Association, Annual Law Conference
- 10 Things Every (non-sped) Teacher Needs to Know About Special Education, May 2018
Presenter, Arizona Charter Schools Association, Legal Week 2018
- Avoiding Pitfalls and Potholes in Admission and Enrollment Practices, May 2018
Presenter, Arizona Charter Schools Association, Legal Week 2018
- Independent Educational Evaluations: Your Top 10 Questions Answered!, April 2018
Presenter, Council of School Attorneys (COSA) Law Seminar 2018 (San Antonio, TX)
- Navigating MDRs, FBAs, BIPs, IAESs, and Other Strange Creatures that Dwell in Special Ed Discipline, April 2018
Presenter, LRP’s National Institute (Dallas, TX)
- Independent Educational Evaluations: Your Top 10 Questions Answered!, April 2018
Presenter, LRP’s National Institute (Dallas, TX)
- Avoiding Pitfalls and Potholes in Admission and Enrollment Practices, March 2018
Presenter, Yavapai County Education Service Agency Training
- Kojak on Campus: Dealing with Law Enforcement at School, November 2017
Presenter, Arizona Charter Schools Association, Business Summit
- Kojak on Campus: Dealing with Law Enforcement at School, November 2017
Presenter, OM Lunch and Learn Lecture Series
- Keeping Kids Safe: Dealing with Sex Offenders in and Around School, September 2017
Conference Presenter, Arizona School Boards Association Annual Law Conference
- In Search of a More Perfect Union: When Rights of Religious Liberty and Anti-Discrimination Collide, June 2017
Seminar Chair, Arizona State Bar Convention
- “Appropriate Progress”—The Supreme Court Elevates the FAPE Standard in Special Education, May 2017
Presenter, Arizona Charter Schools Association, Legal Week 2017
- MDRs, FBAs, BIPs, and Other Strange Creatures that Live in the World of Special Education Discipline, May 2017
Presenter, Arizona Charter Schools Association, Legal Week 2017
- Student Discipline Under the IDEA for Children with Disabilities, April 2017
Presenter, OM Lunch and Learn Lecture Series
- Child Abuse Reporting Obligations, January 2017
Presenter, LRRC Arizona Law Day, Religious Institutions
- Student Searches in the Age of Smart Phones and iPads, September 2016
Conference Presenter, Arizona School Boards Association Annual Law Conference
- Cyberharassment: Problem Parishioners and the New School Bully, June 2015
Presenter, The Church Network, Greater Phoenix Chapter
- Legal Perspectives in Education, 2013, 2008-2010
Guest Lecturer, Introduction to Education Class, Mesa Community College
- FERPA 2012: Understanding the New Regulations and Guidance, and Navigating the Gray Areas, September 2012
Conference Presenter, Arizona School Boards Association Annual Law Conference
- Parliamentary Procedure and the Law, September 2011
Conference Presenter, Arizona School Boards Association Annual Law Conference
- Pupil Records: Rules, Responsibilities, and Requirements, October 2009
Presenter, Lorman Webinar
- Testing the Forgotten Prong of Tinker: Can One Student’s Right of Speech Trump Another’s Right to Be Left Alone?, September 2008
Conference Presenter, Arizona School Boards Association Annual Law Conference
- Fairness in the Law, October 18, 2005
Guest Lecturer, Mock Trial Presentation, Carol Rae Ranch Elementary
- Legal Issues for School Boards, May 18, 2005
Presenter, Valley Leadership Workshop for Maricopa County School Board Candidates
- Discipline of Students with Special Needs in Arizona, November 18, 2004
Faculty, Professional Education Seminar, Lorman Educational Services
- Student Discipline and FERPA Compliance, November 10, 2004
Guest Lecturer, Education Leadership Course, Northern Arizona University
- Religion and Schools: The Latest Issues, September 2004
Conference Presenter, Arizona School Boards Association Annual Law Conference
- School Law in Arizona, April 14, 2004
Faculty, Professional Education Seminar, National Business Institute
- Arizona Special Education Law, January 16, 2004
Faculty, Professional Education Seminar, National Business Institute
- Privacy Concerns in the Educational Setting, November 12, 2003
Faculty, Professional Education Seminar, Lorman Educational Services
- Public Records Law and Family Education Rights and Privacy Act, October 23, 2003
Presenter, Training Seminar, School District Seminar
- “Education and the Media—Opposing Interests or Is There Common Ground,” Fall 2003
Panel Member, Panel Discussion, Education and the Media Forum
- Student Discipline for Off Campus Activities, September 2003
Conference Presenter, Arizona School Boards Association Annual Law Conference
- Discipline of Students with Special Needs in Arizona, June 3, 2003
Faculty, Professional Education Seminar, Lorman Educational Services
- Child Abuse Reporting Obligations for School Personnel, February 20, 2003
Presenter, Training Seminar, School District Seminar
- Arizona Open Meeting Law, January 2003
Presenter, Training Seminar, School District Seminar
- Practical Tips for Dealing with the Legalities of Student Discipline, March 21, 2002
Presenter, Training Seminar, School District Seminar
oThe Ecclesiastical Abstention Doctrine in Ball v. Ball: A Case Study on the Limitations of Judicial Intervention into Religious Disputes, December 2021Presenter, Arizona State Bar Webinar (Phoenix, AZ)
