Garner, David D.

  Phoenix, Arizona, USA
 +1 602-640-9050
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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. ‎

As a former high school English and ESL teacher, Dave understands the challenges faced by educators and administrators.  Since 2002, Dave has given at least 27 presentations in various education forums including at the Arizona School Boards Association Annual Law Conference.

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.
  • 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).