David A. Weatherwax

Member

Phoenix, Arizona

Phone: 602.240.3009

Fax: 602.240.6600

dweatherwax@shermanhoward.com

Education

  • Juris Doctor, Arizona State University Sandra Day O’Connor College of Law, 1981
    • magna cum laude
    • Phi Beta Kappa and Phi Kappa Phi
  • Bachelor of Science, Arizona State University, 1978
    • summa cum laude

David Weatherwax is a member in Sherman & Howard’s Litigation, Trials & Appeals practice group. He has more than 35 years of experience representing clients in all types of business disputes and creditor’s rights matters, including, but not limited to, securities fraud, contract disputes, partnership and shareholder disputes, fraud and racketeering claims, construction litigation, real property disputes, breach of fiduciary duties, injunctions and pre-judgment remedies, asset recovery, defamation and false light claims, abuse of process and malicious prosecution claims, and preference and fraudulent transfer avoidance actions. His clients include major financial institutions, receivers, developers, contractors, individuals, and public and private entities. David appears regularly in the Superior Court of Arizona and other states, the United States District Court for the District of Arizona and other Districts, the United States Bankruptcy Court, and state and federal Appellate Courts.

Experience

  • Successfully represented many local, national and international secured lenders and other creditors in receivership cases filed in State and Federal Courts in Arizona, California, New York, Texas, and Delaware involving operating businesses, large apartment complexes, mixed use commercial projects, agribusiness operations, large resorts and spas, super-regional malls, and shopping centers, including, without limitation:
    • The repossession of television stations in Alaska, including the appointment of a receiver over, and subsequent liquidation of, the assets and FCC licenses.
    • The repossession of grocery stores in the Southeast, including the appointment of a receiver over, and subsequent liquidation of, the assets.
    • The workout and restructuring of large loans, including, but not limited to (i) a loan to a major railroad line, (ii) several aircraft leases, and (iii) a loan involving several radio stations in the Midwest.
    • The repossession of several commercial aircraft, including from a South American carrier.
    • The repossession of a large conveyor manufacturing business located in the Southeast, including the appointment of a receiver over, and ultimate liquidation of, the assets.
    • The foreclosing on hotel properties in Arizona, including receivership proceedings pending the sale.
    • The foreclosure of a golf course, pro shop, restaurant and other amenities, including the appointment of a receiver over, and ultimate liquidation of, the assets.
    • The foreclosure of approximately 10,000 acres of land in Arizona, which ranks among the largest trustee’s sales in Arizona history by size and by amount at issue (in excess of $250 million).
  • Successfully represented a significant equipment lessor ($145 million) in enforcing its rights and remedies against lessee and other creditors arising out of multi-million dollar fraud in the construction and operation of bottling plant, including repossession and liquidation of equipment.
  • Successfully represented primary secured lender (in excess of $70 million) in receivership and subsequent bankruptcy proceedings of a premier metropolitan Phoenix Golf Resort and Spa.
  • Successfully represented a creditor in a several week trial litigating the estate’s claims against a principal of the debtor for breach of fiduciary duties, usurpation of corporate opportunities, and to obtain ownership of parking lot associated with debtor’s business; favorable ruling was affirmed on appeal.
  • Successfully represented a developer in complex litigation regarding syndication, development and operation of low-income housing tax credit properties.
  • Represented a national working capital secured creditor of general contractor in successfully recovering entire indebtedness from contractor’s surety.
  • Successfully represented a State Court appointed Receiver in litigation involving a national resort management company involving the termination of a large Resort and Spa Management Contract and the enforceability of an SNDA.
  • Successfully represented a lender/owner in connection with claims against a national developer of two large residential projects for breach of contract (assignment agreements, construction agreements and option agreements), defective workmanship and fraud.
  • Obtained dismissal and summary judgment disposing of multi-million dollar claims for Racketeer Influenced and Corrupt Organizations Act (RICO), conspiracy, abuse of process, intentional infliction of emotional distress and aiding and abetting.
  • Successfully defended several corporations, limited partnerships, and their principals in Federal Court litigation involving allegations of fraud, forgery, defamation, tortious interference, false light, and violations of the Fair Debt Collection Practices Act (FDCPA).
  • Represented and represents Court-appointed Receivers with respect to a premier Paradise Valley Resort and Spa, and a super-regional mall.
  • Obtained summary judgment for developer of 150-acre commercial project in litigation for alleged negligent misrepresentation, breach of contract and specific performance of a Purchase and Sale Agreement.
  • Represented owner of golf course in complex litigation against Sanitary District, resulting in enforcement of long- term Effluent Disposal Agreement and a significant monetary judgment against the District.
  • Represented a national telecommunications company in complex bankruptcy litigation against vendor involving claims of fraud, overbilling, setoff, recoupment and subrogation.
  • Successfully represented a seller in enforcing its right to re-obtain ownership of golf course, pro shop, restaurant and community center in Arizona.
  • Successfully prosecuted a Federal Court lawsuit for a company  doing business in Arizona, California, Colorado, Nevada, New Mexico and Utah against former employees and their new business entities on, among other things, federal and state RICO violations involving mail fraud, wire fraud and fraudulent invoices, and claims of fraud, breach of fiduciary duties, disgorgement of monies, imposition of a constructive trust, unfair competition, and violations of the Arizona Trade Secrets Act.

Professional Activities

  • Arizona Trial Lawyers Association
  • State Bar of Arizona
  • American Bar Association
  • Board Member, Greater Phoenix Urban League

Highlights

  • Best Lawyers in America, Commercial Litigation, Phoenix (2010-2023)
  • Southwest Super Lawyer, Business Litigation (2018-2019)
  • Global Law Experts, “Lawyer of the Year,” Creditor’s Rights Litigation, Arizona (2019)
  • Chambers USA, Band 4, Litigation: General Commercial, Arizona (2019-2022)
  • Chambers USA, Recognized Practitioner, Litigation: General Commercial, Arizona (2015, 2017-2018)
  • Martindale-Hubbell, “AV Preeminent”
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