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Morgan Lewis

Brad Fagg

Partner

brad.fagg@morganlewis.com

Washington, DC Phone +1.202.739.5191 Fax +1.202.739.3001

1111 Pennsylvania Ave. NW//Washington, DC 20004-2541//United States

With emphases on the energy and federal procurement industries, Brad Fagg guides sophisticated commercial clients through high-stakes contractual and regulatory disputes, and government and internal investigations. He also advises on predispute counseling matters. As a co-leader of the firm’s energy litigation practice and a long-time senior member of the firm’s government contracting practice, Brad has handled scores of major matters for utilities and other energy companies. He often serves as lead counsel at trial and in appellate proceedings. Brad is the pro bono partner for the firm's Washington, DC office.

Brad is lead counsel for most of the US nuclear utilities in their claims against the federal government regarding the government’s obligations to accept and dispose of spent nuclear fuel. He has secured multiple hundred-million-dollar settlements and trial verdicts for such clients, and then successfully defended the awards upon appeal. Under Brad’s leadership, Morgan Lewis teams have won the electric utility industry an aggregate of more than $3 billion in judgments and settlements.

In claims against the government, Brad maximizes recovery through a deep knowledge of opposing counsel and presiding judges, and efficient deployment of pretrial resources.

Described by a Court of Federal Claims judge as representing clients “zealously, creatively, and with civility,” Brad also has experience with all manner of government contract disputes and counseling, the False Claims Act, civil fraud investigations, class actions, contract disputes, and federal administrative issues. Brad represents clients in other industries in commercial, construction, and environmental matters.

Before joining Morgan Lewis, Brad served as a trial attorney in the Civil Division of the US Department of Justice, handling civil fraud cases, procurement disputes, takings claims, and employment appeals. His trial work involved construction and other commercial contract disputes, including multimillion-dollar government contract claims, and civil fraud investigations. In that role, Brad briefed and argued cases before the US Court of Appeals for the Federal Circuit and other courts of appeal.

Selected Representations

  • Secured multiple multimillion dollar trial court judgments for nuclear utilities from the US Court of Federal Claims, in connection with spent nuclear fuel damages claims against the federal government. Successfully defended against government appeals of such judgments in the US Court of Appeals for the Federal Circuit.
  • Prevailed in a AAA arbitration involving a failed biomass renewable energy power plant project, in which developer sought in excess of $130 million from public utility client. After a full evidentiary hearing, secured dismissal of all claims, recovery on counterclaims, and award of all claimed attorneys fees and costs for the client.
  • Prevailed on a motion to dismiss a $100+ million federal lawsuit brought by a general contractor against a public utility client involving letter of credit issues and disputes over construction of a 1,650 MW gas-fired combined cycle power plant; case settled favorably soon thereafter.
  • Prevailed on a motion to dismiss a purported class action involving preemption and commerce clause allegations, which sought more than one billion dollars in damages from public utility client.  Successfully defended dismissal on appeal to the US Court of Appeals for the Eleventh Circuit.
  • Secured invalidation of a revised Department of Education student loan lending rule, which would have imposed hundreds of millions of dollars in liability, for a major financial services company in an Administrative Procedure Act challenge in the US District Court for the District of Columbia.
  • Successfully defended against a court challenge to the renewal of the operating license for a nuclear power plant in the US Court of Appeals for the Third Circuit.
  • Secured dismissal of a False Claims Act qui tam lawsuit in the US District Court of the District of Columbia for an energy company, on threshold motion to dismiss.
  • Negotiated favorable settlements, and counseled multiple clients, in connection with power purchase agreement disputes.
  • Secured favorable jury verdict for co-owner of a power generating facility, in dispute over breach of an operating agreement in Nebraska state court.
  • Defeated allegations of NEPA violations in a challenge in the US Court of Appeals for the Third Circuit, on behalf of a nuclear utility client.
  • Conducted internal investigations, and responses to government investigations, regarding widely-publicized allegations of inattentive security guards at nuclear power plants.
  • Conducted multiple internal investigations, and responses to government investigations, into energy trading activities arising out of market manipulation allegations in energy markets.

Awards and Affiliations

Ranked, Energy: Nuclear (Regulatory & Litigation), USA, Chambers Global (2019–2022) 

Ranked, Energy: Nuclear (Regulatory & Litigation), Nationwide, Chambers USA (2017–2022)

Recommended, Industry focus: Energy litigation: conventional power, The Legal 500 US (2019–2022)

Recommended, Industry focus: Energy litigation: oil and gas, The Legal 500 US (2019–2022)

Recommended, Industry focus: Energy regulation: conventional power, The Legal 500 US (2019, 2020)

Recommended, Energy: Litigation, The US Legal 500 (2014, 2015)

Selected for inclusion in the BTI Client Service All-Star Team 2013 following client nomination

President, Court of Federal Claims Bar Association (2008)

Member, Court of Federal Claims Advisory Council

Member, Federal Circuit Bar Association

Member, District of Columbia Bar Association

Harlan Fiske Stone Scholar, Columbia University School of Law

Former Editor, Columbia Law Review

Admissions

  • District of Columbia
  • New York
  • U.S. Court of Federal Claims
  • U.S. Court of Appeals for the Federal Circuit
  • U.S. Supreme Court

Clerkships

  • Clerkship to Judge Peter Leisure of the US District Court for the Southern District of New York (1988 - 1989)

Education

  • Columbia Law School, 1988, J.D.
  • Wake Forest University, 1985, B.A.

Sectors

  • Energy

Services

  • Environmental Counseling & Litigation
  • Product Liability & Mass Torts
  • White Collar Litigation & Government Investigations
  • Appellate
  • Commercial Litigation
  • Government Contracts
  • Energy Litigation
  • Corporate, Finance & Investment Management
  • Litigation, Regulation & Investigations
  • False Claims Act & Qui Tam Litigation

Regions

  • North America

Events

7/15/2021 - Severe Weather Events - The Winter Storm Uri Example: Updates, What's Next, and Lessons Learned for the Energy Sector
9/18/2019 - Power Plant Closures and Repowering Roundtable
5/30/2018 - Privilege Primer for the Energy Industry – May 2018
4/19/2018 - Escobar, DOJ Memos, and the FCA: A Brave New World or the Same as it Ever Was?
1/10/2018 - Privilege Primer for the Energy Industry – January 2018
4/4/2017 - The False Claims Act Webinar: The Year in Review and a Look Forward in the Age of President Trump
5/3/2016 - U.S. Court of Federal Claims 28th Annual Judicial Conference
11/13/2014 - 2014 False Claims Act Update
4/24/2013 - False Claims Act (FCA) 2012 Year in Review: Government Contractors

News

8/26/2022 - Another Stellar Edition of Litigator of the Week Runners-Up and Shout Outs, The AmLaw Litigation Daily
2/10/2021 - No End in Sight to Cases Over Lack of Nuke Waste Storage, Law360
12/20/2017 - Morgan Lewis Applies Fee Award from Pro Bono Veterans Benefits Class Action to Support Legal Fellows Serving Veterans Community
1/24/2017 - Energy Group Of The Year: Morgan Lewis, Law360
4/6/2015 - Feds' Spend on Lawsuits Up, The National Law Journal
4/28/2014 - 'Arbitrary' GSA Decision Would Bar $500M Bid: Contractor, Law360
3/10/2014 - U.S. Cuts Legal Tab in Half, The National Law Journal
2/25/2013 - Q&A With Morgan Lewis's Brad Fagg, Law360
12/14/2012 - Government Contracts MVP: Morgan Lewis' Brad Fagg, Law360

Publications

5/5/2022 - Real-World Litigation Effects of Energy Contract Clauses: ‘No Waiver’ Clauses
12/17/2020 - NRC Withdraws Unpopular Proposed VLLW Interpretive Rule
6/18/2019 - In Rare 3-3-3 Decision, Supreme Court Upholds Virginia Ban on Uranium Mining
7/13/2018 - Eleventh Circuit Affirms Dismissal of Claims Involving Florida’s Nuclear Cost Recovery System
7/13/2018 - Eleventh Circuit Affirms Dismissal of Constitutional Claims Against Florida Utilities
11/13/2014 - Presenter, False Claims Act: 2014 Year in Review
5/30/2014 - Commercial Arbitration for DOE Contractors, presented at the DOECAA Annual Conference, Washington, D.C.
5/30/2014 - Department of Energy Contractor Attorneys Association Annual Meeting – Commercial Arbitration for DOE Contractors
2/25/2014 - Panelist, Pre-trial Case Management: The Bar’s Perspective, presented for the U.S. Court of Federal Claims Judicial Conference, Washington, D.C.
10/15/2013 - Don't Let The Clock Run Out On Gov't Contractors, Law360
4/24/2013 - False Claims Act (FCA) 2012 Year in Review: Government Contractors
4/18/2013 - Department of Energy Contractor Counsel Association Annual Meeting – Arbitration 101: Considerations for the DOE Contractor
11/28/2012 - The Nuts and Bolts of Arbitration, presented for the Washington Metropolitan Area Corporate Counsel Association
5/17/2012 - Federal Circuit Judicial Conference panel – Lessons Learned from Major Cases of the Last Ten Years
5/17/2012 - Spent Nuclear Fuel Damages Cases: A Chronological “Cheat Sheet” of Some Key Decisions by the United States Court of Appeals for the Federal Circuit, presented at the U.S. Court of Appeals for the Federal Circuit Judicial Conference
7/27/2011 - The Debt Ceiling Debate: A Major Implication Ignored, Law360
5/14/2010 - The Beginning and End of the Claims Process: From Inception of the Dispute to Resolution and Payment, presented at the Spring 2010 DOECAA Conference, Kansas City, MO