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David H. Tennant



David Tennant leads the firm’s highly regarded Appellate practice, co-chairs our nationally ranked Indian Law and Gaming team and maintains a varied litigation practice involving business disputes, insurance, construction, products and premises liability.

What do you focus on?

Appeals and complex motions

My appellate work has taken me to the Supreme Court, but my daily challenge is to develop practical strategies to achieve client goals in much busier lower appellate courts where most law is made. Economy of expression is key in any court. I have represented individuals, business and municipal clients in often high-profile appeals throughout New York State and across the country. My passion for appellate work regularly combines with my commitment to pro bono work. Recent pro bono appeals have included representing a veterans group in the U.S. Circuit Court for the Federal Circuit and a national law center to prevent gun violence in the Illinois Supreme Court and Ninth Circuit.

Indian Law

We practice at the highest levels in the country representing counties and municipalities in the highest profile cases involving Indian land claims, tribal recognition, casino development and related jurisdictional, regulatory and taxing disputes. My team and I recently secured a historic victory for two counties in central New York, dismissing all tribal land claims ending what had been a 40-year odyssey through the courts and tribal claims for billions in compensation.

Commercial Litigation

Businesses find themselves cross-wise with regulators, customers, vendors, consultants and their own employees, sometimes even senior management, giving rise to the need for cost-efficient dispute resolution. Faster, cheaper, smarter is our mantra. Recently I defended a global telecommunications company against a multi-million dollar claim brought by a consultant and defended a local construction company against fire damage claims arising from construction of a waste heat plant located out of state.

What do you see on the horizon?

I see courts increasingly challenged to remain effective and efficient venues to resolve business disputes as federal and state budget cuts further erode judicial resources. Business lawyers and clients will need to work together to identify opportunities for faster, smarter and cheaper methods for resolving disputes between businesses.

Selected Publications

  • Co-author with Hon. Richard C. Wesley, Circuit Judge, United States Court of Appeals for the Second Circuit, “Appeals to the U.S. Circuit Courts,” a chapter on federal civil appellate practice to be published by Thomson Reuters in 2011 as part of the multi-volume treatise, Business and Commercial Litigation in the Federal Courts.
  • Co-author of two chapters on appellate practice (record on appeal and appellate motion practice) to be published by ALM in 2011 as part of a new appellate treatise, Appellate Practice in Federal and State Courts. Click here to read a review from the American Bar Association.
  • Second Circuit reporter for Defense Institute Certworthy newsletter (2011).
  • Project Director/Editor, For the Defense Appellate Specialty Edition (DRI November 2010).
  • Co-author, “Mixing Business with Ethics: The Duty to Report Malpractice by Trial Counsel” For the Defense Appellate Specialty Edition (Defense Research Institute (DRI) November 2009); re-published in The Professional Lawyer (ABA Center for Professional Responsibility—Standing Committee on Professionalism (January 2010)).
  • Author, “Mohawk Industries, Inc. v. Carpenter. "Privilege-related Discovery Orders Are Not Immediately Appealable Under The Collateral Order Doctrine,” ABA Council of Appellate Lawyer, Appellate News (December 2009).
  • Author, “Higher Art in Case Citations (Parentheticals and More)” For the Defense (DRI March 2009).
  • Co-Author, “The ‘Nexus' Requirement for Specific Jurisdiction,” Law 360, New York (March 3, 2009).
  • Author, “Class Action Killer: The ‘Predominance Requirement,”’ Law 360, New York (October 31, 2008).
  • Author, “The Surge in Asylum Appeals: What Does it Mean to Civil Appellate Litigation?” Certworthy (Defense Research Institute March 2008).
  • Author, “The Hazards of Over-Selling: Ipse Dixits and other Unsubstantiated Arguments,” For the Defense (DRI August 2006).
  • Co-author, “Judicial Ethics and the Internet: May Judges Search the Internet in Evaluating and Deciding a Case?” The Professional Lawyer, Vol. 16, Issue 2 (2005); published in shortened form in NYSBA State Bar News, Vol. 47, No. 3 (May/June 2005).

Selected Presentations

  • Program Chair and CLE panelist at AJEI Annual Summit, “The Pain of Waiver: Everything You Ever Wanted to Know about Waiver but were Afraid to Raise,” with the Hon. Erin M. Peradotto, New York Supreme Court, Appellate Division, Fourth Department; Hon. D. Brooks Smith, U.S. Court of Appeals for the Third Circuit; and Hon. N. Randy Smith, U.S. Court of Appeals for the Ninth Circuit.
  • Program chair and CLE panelist at Spring Meeting of New York State Bar Association (NYSBA) Commercial and Federal Litigation Section (CFLS), Newport, RI, May 20–22, 2011. Provided appellate practitioner’s view as part of panel discussion on the standard of review, with the Hon. Victoria A. Graffeo, Associate Judge of the New York Court of Appeals; Hon. Peter W. Hall, Circuit Judge, United States Court of Appeals for the Second Circuit; and Hon. Ariel E. Belen, Associate Justice of the Appellate Division, Second Department.
  • Program chair, NYSBA Commercial and Federal Litigation Section, Annual Meeting, “Behind the Veil: A Frank Discussion About Our Appellate Courts,” featuring New York State Court of Appeals Chief Judge Jonathan Lippman, former Chief Judge Judith S. Kaye, and Second Circuit Judge Richard C. Wesley (New York City, January 27, 2010).
  • Program chair and panelist, NYSBA, Ethics & Civility CLE program:  “Introductory Strategies on Ethics and Civility in Everyday Lawyering” (April 20, 2007; April 25, 2008; April 3, 2009; April 9, 2010; and April 15, 2011).
  • Program chair and moderator, NYSBA Commercial and Federal Litigation Section, “Where The Action Is: Commercial Litigation in State Court/Views from the Bench,” (first regional CLE program and reception involving Commercial Division judges from Syracuse, Rochester, and Buffalo) (November 8, 2007).
  • Panelist, NYSBA, Commercial and Federal Litigation Section Spring Meeting, Ethics Game Show Program (May 23, 2010).
  • Panelist, NYSBA, “New York Appellate Practice,” Rochester, NY (October 7, 2009).
  • Panelist, New York State Judicial Institute, Legal Update (ethics program), Rochester, NY (October 28, 2009). 
  • Panelist, New York State Judicial Institute, Commercial Division Update; state-wide program at NYSJI, White Plains, NY (June 18, 2009).
  • Panelist, “Panel Discussion on New York’s Revised Rules of Professional Conduct,” April 15, 2009 (Nixon Peabody client CLE program).
  • Guest Commentator, Legal Affairs, WXXI Radio: 1370 Connection (2007).
  • Guest presenter on legal ethics, SUNY Brockport Honor Ethics class (2006 to present).
  • Guest Lecturer, Hofstra University Law School, “The Top Ten Secrets For Writing the Most Persuasive Briefs” (2005).

Recent Appeals

Pending Appeals

  • Madison County and Oneida County, New York v. Oneida Indian Nation of New York, Supreme Court of the United States, Case No. 10-72. Successfully sought review of circuit court decision reported at 605 F.3d 149 (2d Cir. April 27, 2010), which prevented defendant-counties from using tax foreclosure to collect lawfully owed property taxes from Indian tribe. Supreme Court on January 10, 2011 (per curiam), vacated circuit court decision and remanded for further proceedings.
  • H.M. (Anonymous) v. E.T. (Anonymous) New York Court of Appeals (No. 48) (May 4, 2010). Pro bono representation of respondent in matter of first impression involving application of paternity and child support laws to same-sex couple who utilized artificial insemination—appellate division order reversed 4–3 on jurisdictional grounds and remitted to appellate division for determination on merits [further appeal on merits awaiting final order on remand].
  • State of New York et al. v. Shinnecock Indian Nation et al., United States Court of Appeals for the Second Circuit, No. 08-1194-cv(L), seeking affirmance of district court decision, reported at 523 F. Supp.3d 185 (E.D.N.Y. 2008), in which district court issued permanent injunction preventing tribe from unilaterally building casino complex on non-reservation (fee-owned) lands in the Town of Southampton, New York.
  • National Organization of Veterans’ Advocates, Inc. v. Secretary of Veterans Affairs, United States Court of Appeals for the Federal Circuit, Case Nos. 2010-7136, -7139. 7142. Pro bono representation of veterans’ rights group challenging Secretary’s rule permitting only VA-employed (or contracted) psychiatrists and psychologists to determine, in a certain class of cases, whether the veteran’s diagnosed posttraumatic stress disorder was incurred in military service (excluding all equally or better qualified doctors in private practice).

Completed appeals

  • Westchester County Airport v. Signature Flight Support Corp., 2011 N.Y. Slip. Op. 03200 (2d Dept. April 19, 2011) (reversing denial of summary judgment and entering summary judgment in favor of client in personal injury action).
  • Oneida Indian Nation of New York v. County of Oneida., 2010 U.S. App. LEXIS 16426 (2d. Cir. August 9, 2010) (affirming summary judgment decision dismissing Oneida possessory land claims against state of New York and counties seeking trespass damages in excess of one billion dollars, and reversing denial of summary judgment on Oneida’s allegedly non-possessory land claims against state seeking fair compensation for land transaction in late 18th and early 19th centuries, also seeking in excess of one billion dollars) [“Featured Decision,” NYLJ.com, August 10, 2010].
  • Continental Ins. Co. v. Atlantic Casualty Ins. Co., 2010 U.S. App. LEXIS 8867 (2d Cir. April 29, 2010) (affirming summary judgment to defendant-insurer based on ground not reached by district court).
  • Burgess v. Harris Beach, PLLC, et al., 346 Fed. Appx. 658; 2009 U.S. App. LEXIS 20837 (2d Cir. Sept. 21, 2009) (affirming dismissal of all claims—First Amendment, employment discrimination and state law tort claims—asserted by lawyer representing teacher in action against school district).
  • Cummins, Inc. v. Atlantic Mutual Ins. Co., 56 A.D.3d 288 (1st Dept. 2008) (reversing summary judgment entered for insurer, finding question of fact as to meaning of contract terms, and remanding for trial on claim that insurer overcharged client by $1 million under large deductible insurance program).
  • Candela v. Byron Chemical Co., 54 A.D.3d 306 (2d. Dept. 2008) (affirming $6+ million judgment for client in contract dispute following 6-week trial).
  • 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).
  • Campbell v. Int’l Truck & Engine Corp., 32 A.D.3d 1184 (4th Dept. 2006) (affirming summary judgment for client dismissing failure to warn claim in wrongful death but finding triable issue of fact as to alleged design defect).
  • 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).

Lawyer artist and mom Niki Black talks about Art of Lawyering fundraiser

Democrat & Chronicle | October 12, 2017

Rochester commercial litigation partner David Tennant, who is also chair of the Art of Lawyering fundraiser, is quoted in this article about the organization’s upcoming silent auction to benefit the Volunteer Legal Services Project, which provides pro bono legal assistance to those in need in Monroe County. The auction will include several art pieces donated by the legal community.

Supreme Court petitions to watch in Native American law

Law360 | September 22, 2017

This news roundup covers potential U.S. Supreme Court petitions that could impact interests of Native American tribes. Rochester commercial litigation partner David Tennant provides commentary about the petition that could allow for a Native American tribe to build a casino on Martha’s Vineyard.

10th Circ. gives states a leg up in making gaming deals

Law360 | July 21, 2017

Rochester commercial litigation partner David Tennant provides third-party commentary in this analysis of a recent Tenth Circuit decision involving the state of New Mexico and the Pueblo tribe’s casinos.

NY seeks to take on UK for high-stakes commercial cases

New York Law Journal | July 21, 2017

This column is about New York’s Commercial Division Advisory Council’s proposal to keep more complex cases in New York as opposed to the London Commercial Court.  Rochester commercial litigation partner David Tennant is quoted and mentioned as one of the principal members of the subcommittee that drafted the proposal.

Interior Department wants one more go at Mashpee Wampanoag land ruling

Taunton Gazette | July 02, 2017

This coverage is about recent developments in the case involving the Mashpee Wampanoag Tribe’s bid for land to build a casino in Taunton, Massachusetts, and the U.S. Department of Interior’s next steps. Rochester commercial litigation partner David Tennant and Boston labor and employment associate Matt Frankel are included for representing the Massachusetts residents.

Interior letter renews hope for Mashpee tribe’s plans

The Cape Cod Times | July 01, 2017

The following coverage is about recent developments in the case involving the Mashpee Wampanoag Tribe’s bid for land to build a casino in Taunton, Massachusetts and the U.S. Department of Interior’s next steps. Rochester commercial litigation partner David Tennant and Boston labor and employment associate Matt Frankel are included for representing the Massachusetts residents.

Mass. tribe pulls casino land-into-trust bid from DOI

Law360 | June 28, 2017

This article is about recent developments in the case involving the Mashpee Wampanoag Tribe’s bid for land to build a casino in Taunton, Massachusetts.  Rochester commercial litigation partner David Tennant and Boston labor and employment associate Matt Frankel are included for representing the Massachusetts residents.

Mashpee tribe’s land in trust decision—including Taunton casino site—delayed

Taunton Gazette | June 20, 2017

Rochester commercial litigation partner David Tennant is quoted, and Boston labor and employment associate Matt Frankel is mentioned, in this article about when a ruling will be made in a casino and land-in-trust case in Massachusetts.

The top Native American rulings of 2017: Midyear report

Law360 | June 02, 2017

Rochester commercial litigation partner David Tennant is quoted in this article discussing a decision to allow the Wampanoag Tribe of Gay Head to build a casino on Martha's Vineyard and the state’s plan to challenge the decision by taking the case to the Supreme Court.

Feds drop appeal in Taunton casino case, may still take land in trust on other grounds

Taunton Daily Gazette | April 28, 2017

Rochester commercial litigation partner David Tennant is quoted in this article about the next steps in the Mashpee Wampanoag Tribe’s endeavors to build a casino in Taunton, MA.

Pro bono spotlight: 'Art of Lawyering' is recruiting artists and guests

Daily Record | April 11, 2017

Rochester commercial litigation partner David Tennant is quoted in this article about the 2017 Art of Lawyering fundraiser for Volunteer Legal Services Project, Inc. David is one of the AOL Committee co-chairs organizing this event.

U.S. Supreme Court lets Cowlitz ruling stand, ‘good news’ for Taunton casino prospects

Taunton Gazette | April 03, 2017

This article focuses on a U.S. Supreme Court decision affirming that it is in the federal government’s authority to take land into trust for another tribe. The article references a case in Massachusetts about the Mashpee Tribe’s attempt to build a casino there.  Rochester commercial litigation partner David Tennant, who represents residents who are challenging the casino, is quoted.

Forensic examination of digital devices in civil litigation: The legal, ethical and technical traps

The Professional Lawyer | November 01, 2016

Rochester commercial litigation partner David Tennant coauthored this article that provides tips for lawyers and forensic investigators to consider when extracting electronically stored information from digital devices. It also addresses areas of ambiguity in the law and provides suggestions for managing legal and ethical risks.

Supreme Court’s Short-handedness Limits its Functioning

Rochester Business Journal | September 23, 2016

Rochester partners Jeremy Wolk and David Tennant authored this column discussing the impact of the vacant seat on the U.S. Supreme Court.

DC Circ. Ruling Apt To Tilt DOI's Land-Into-Trust Tactics

Law360 | August 15, 2016

This article focuses on the Department of Interior’s interpretation of the Indian Reorganization Act (IRA). Rochester commercial litigation partner David Tennant is quoted noting his recent case in Taunton, Massachusetts, and how he believes the DC Circuit misread the IRA in its decision in a separate case.

Mass. Casino Opponents Come Up Winner In Trust Land Fight

Law360 | July 29, 2016

This article highlights a favorable federal court ruling for a firm client in a case involving a proposed casino in Massachusetts.  Rochester commercial litigation partner David Tennant and Boston labor and employment associate Matt Frankel represented residents of the town of Taunton who challenged the construction of the Mashpee Wampanoag Tribe’s planned casino.

4 Issues Tribal Advocates Want The Supreme Court To Avoid

Law360 | July 29, 2016

Rochester commercial litigation partner David Tennant is quoted in this article which covers four key questions attorneys for Native American tribes are leery of the high court tackling.

Judge promises quick decision on challenge to Taunton casino

Boston Globe | July 12, 2016

This article provides updates on the legal battle over the Mashpee Wampanoag tribe’s plan to build a $1 billion casino in Taunton, MA, a city located 40 miles from Boston. Partner David Tennant and associate Matt Frankel are representing the group of Taunton property owners.

DOI Seeks To Pare Challenge Of Approval Of Mass. Tribe Trust

Law360 | April 20, 2016

Rochester partner David Tennant and Boston associate Matthew Frankel are noted as counsel representing Massachusetts residents in a case involving land the Mashpee Wampanoag Tribe has put into a trust for a $500 million casino project.

Neb. Tribe's High Court Win Doesn't Clinch Tax Power

Law360 | March 23, 2016

Rochester commercial litigation partner David Tennant is quoted in this article about the U.S. Supreme Court’s decision on Tuesday granting a Nebraska tribe a win by ruling that a federal land act didn't reduce the size of its reservation.

Law360 Native American Editorial Advisory Board

Law360 | February 25, 2016

This feature story profiles the members of the 2016 Native American Law360 editorial advisory board, including partner David Tennant, who served on the 2015 board as well.

Justices May Stress Non-Tribal History in Jurisdiction Fight

Law360 | October 08, 2015

Rochester Commercial Litigation partner David Tennant, a member of Native American Law360’s editorial board, provides third-party in this U.S. Supreme Court tribal jurisdiction article.

State Bar Publishes Book on 2nd Amendment

New York Law Journal | August 13, 2015

Rochester Commercial Litigation partner David Tennant is mentioned in an article about the New York State Bar Association’s recently published book, Understanding the Second Amendment, Gun Regulation in America Today and Yesterday.  The book is a result of the Bar’s Task Force on Gun Violence.  David is chair of the Task Force.

State Offers an Efficient Resource for Business Dispute Resolution

Rochester Business Journal | July 10, 2015

In this monthly “Law” column, Rochester partners Jeff LaBarge and David Tennant discuss efforts by the New York State Supreme Court Commercial Division to improve the litigation process.

Law360 Announces 2015 Native American Editorial Board

Law360 | June 19, 2015

Rochester partner David Tennant has been named to Law360’s 2015 Native American editorial advisory board.

Lawyers Resist Plan to Trim Length of Appeals Briefs

National Law Journal | April 01, 2015

Rochester Commercial Litigation partner David Tennant is quoted in this article discussing the proposal by the Judicial Conference's Advisory Committee on Appellate Rules to limit appellate briefs.

Contact

David H. Tennant

Partner

Rochester

Phone: 585-263-1021


Fax: 585-263-1600

UCLA School of Law, J.D., Order of the Coif

University of Michigan, B.A., with honors in English

U.S. Court of Appeals, Second Circuit

U.S. Court of Appeals, Third Circuit

U.S. Court of Appeals, Ninth Circuit

U.S. Court of Appeals, Federal Circuit

U.S. District Court, Central District of California

U.S. District Court, Northern District of California

U.S. District Court, Eastern District of Michigan

California

New York

U.S. District Court, Eastern District of New York

U.S. District Court, Northern District of New York

U.S. District Court, Southern District of New York

U.S. District Court, Western District of New York

  • Selected by his peers for inclusion in The Best Lawyers in America© 2018 in the fields of: Appellate Practice; Bet-the-Company Litigation; Commercial Litigation; and Product Liability Litigation - Defendants. David has been listed in Best Lawyers since 2012, and was the 2016 Rochester “Lawyer of the Year” in Appellate Law
  • Recognized as a “Leader in the Law” (Nathaniel Award nominee) (Daily Record, November 4, 2010).
  • Recipient, New York State Bar Association President’s Pro Bono Service Award for the Seventh Judicial District (May 3, 2010).
  • Recipient, William Rodman Peabody Award (May 2010).
  • NYSBA Empire State Counsel (2008–2011).
  • Subject of “Pro Bono Spotlight: Responding to a Generation at Risk” The Daily Record (October 9, 2008).
  • On behalf of the NYSBA Committee on Mass Disaster Response, received the Governor’s Award for Excellence in Emergency Management (2003).
  • Director’s Award for Superior Performance as Assistant U.S. Attorney, U.S. Dept. of Justice (1992) (for securing conviction in complex circumstantial evidence case, United States v. Gambina). 

David Tennant is chair of the NYSBA Commercial and Federal Litigation Section (CFLS), co-chairs the CFLS Appellate Practice Committee, serves on the CFLS Commercial Division Committee, and acts as the CFLS liaison to the Commercial Division for the Seventh Judicial District. David Tennant was appointed to the CFLS Task Force on State Court Appeals and the President’s Task Force on the Condition of the State Courthouses. He is a member of the Defense Research Institute Appellate Advocacy Committee and ABA Council of Appellate Lawyers (ABA Judicial Division). 

David Tennant is a member of the New York State Continuing Legal Education Board, having been appointed to a three-year term by Presiding Justice Henry Scudder of the Appellate Division, Fourth Department (December 2009).

  • Board of Directors, Volunteer Legal Services Project (2006 to present).
  • Pro bono intake partner for Rochester Office (2004 to present).
  • Pro bono indigent panel, Second Circuit (2006–2009).
  • NYSBA Committee on Mass Disaster Response (member 1997 to present; Vice-Chair 1997–1999; Chair 1999–2002).
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