David H. Tennant
Partner

Practice Areas

Experience

David Tennant practices in the fields of Indian law litigation and appeals, other complex commercial litigation, products liability, and insurance. As a founding member of the firm’s cross-office/cross-practice group, the Appellate Litigation Team, Mr. Tennant has argued appeals in the New York Court of Appeals and United States Court of Appeals for the Third Circuit and Ninth Circuit, and has handled appeals in all four Appellate Division Departments in New York. His appellate work includes trial consulting in high-exposure cases.

Before joining the firm in 1992, Mr. Tennant served as an assistant U.S. Attorney in the Criminal Division of the U.S. Attorney’s Office for the Central District of California (Los Angeles). Mr. Tennant clerked in federal district court in Los Angeles before entering the U.S. Attorney’s Office.

Selected Publications and Presentations

“The Surge in Asylum Appeals: What does it Mean to Civil Appellate Litigation,” Certworthy (Defense Research Institute (DRI), March 2008) (anticipated).

“The Hazards of Over-Selling: Ipse Dixits and other Unsubstantiated Arguments,” For the Defense (DRI, August 2006).

“Judicial Ethics and the Internet: May Judges Search the Internet in Evaluating and Deciding a Case?” (coauthor), The Professional Lawyer, Vol. 16, Issue 2 (2005) (ABA Center for Professional Responsibility Standing Committee on Professionalism); published in shortened form in State Bar News, Vol. 47, No. 3 (NYSBA, May/June 2005).

“Where The Action Is: Commercial Litigation in State Court/Views from the Bench,” Program Chair, NYSBA Commercial and Federal Litigation Section, November 8, 2007 (first regional CLE program and reception involving Commercial Division judges from Syracuse, Rochester and Buffalo).

“The Top Ten Secrets For Writing the Most Persuasive Briefs,” Guest Lecturer, Hofstra University Law School (2005).

Recent Appeals

Pending Appeals

Oneida Indian Nation of New York v. Madison County and Oneida County, U.S. Court of Appeals for the Second Circuit, Docket Nos. 05-6408-cv(L), 06-5168-cv(CON), 06-5515-cv(CON) (prosecuting appeal on behalf of defendant-counties from summary judgment rulings in tax foreclosure cases).

Oneida Indian Nation of New York v. County of Oneida et al., Second Circuit, Docket Nos. 07-2430-cv(L), 07-2548-cv(XAP), 07-2550-cv(XAP) (representing defendant-counties as cross-appellees in interlocutory appeal/cross-appeals in land claim cases).

Recently completed appeals

N.J. Transit Corp. v. Harsco Corp., 497 F.3d 323 (3d Cir. 2007) (affirming summary judgment dismissing UCC-based breach of implied warranty claims, where plaintiff issued bid package with non-negotiable terms and specified comprehensive bumper-to-bumper express warranty, in effect displacing implied warranties).

Town of Massena v. Healthcare Underwriters Mutual Ins. Company, 40 A.D.3d 1177, 834 N.Y.S.2d 736 (3d Dep’t 2007) (reversing trial court and holding defendant-insurer was required to provide a defense to hospital and certain doctors who served on its peer review committees, even if public policy might preclude indemnification in the event of an adverse verdict).

Brisbin v. Superior Valve Company, 398 F.3d 279 (3d Cir. 2005) (reversing an award of $750,000 in lost profit damages in breach of contract action governed by Pennsylvania UCC, despite finding of bad faith breach; on remand, award was reduced to $20,733.80).

GMAC v. Nationwide Ins. Co., 796 N.Y.S.2d 2(N.Y. 2005) (reversing Appellate Division and creating new law regarding the obligations of excess and primary carriers to pay defense costs  and reversing lower courts ruling that required our client to bear 100 percent of the defense costs).

Western Land Services v. DEC, 894 N.Y.S.2d 465 (3d Dep't 2005) (reversing lower court ruling to reinstate discretion by state agency in administrating statute upon which client had relied in investing more than $500 million since late 2002) "Appellate Decision of the Day," (New York Law Journal, 12-06-05).

Admissions

Mr. Tennant is admitted to practice in the U.S. Court of Appeals for the Second Circuit, Third Circuit, and Ninth Circuit; all U.S. district courts in New York; U.S. District Court for the Central District of California; and U.S. District Court for the Eastern District of Michigan. He is also admitted in California and New York.

Education

UCLA Law School, J.D. (Order of the Coif)
University of Michigan, B.A. (with honors in English)

Affiliations

Mr. Tennant co-chairs the Appellate Practice Committee of the New York State Bar Association Commercial and Federal Litigation Section. He is a member of the NYSBA CFLS Task Force on State Court Appeals; NYSBA CFLS Commercial Division Committee (liaison to Commercial Division for the Seventh Judicial District); Defense Research Institute Appellate Advocacy Committee and ABA Council of Appellate Lawyers (ABA Judicial Division); and Pro Bono Panel, United States Court of Appeals for the Second Circuit.