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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 co-leader of both the firm’s energy litigation practice and 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 $2 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, real estate joint ventures, class actions, 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.
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 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 a favorable settlement for energy trading company in a natural gas purchase agreement dispute in the US District Court for the Northern District of New York.
Secured favorable jury verdict for co-owner of a power generating facility, in dispute over breach of an operating agreement in Nebraska state court.
Secured trial court verdict in favor of real estate joint venture in hotel management contract dispute in US District Court for the District of Columbia.
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 Western energy markets.
Represented a major financial service company in connection with class action claims in the US District Court for the District of Delaware involving ATM network charges; defeated class certification and secured dismissal of claims.
Awards and Affiliations
Ranked, Energy: Nuclear (Regulatory & Litigation), USA, Chambers Global (2019)
Ranked, Energy: Nuclear (Regulatory & Litigation), Nationwide, Chambers USA (2017–2019)
Recommended, Industry focus: Energy litigation: conventional power, The Legal 500 US (2019)
Recommended, Industry focus: Energy litigation: oil and gas, The Legal 500 US (2019)
Recommended, Industry focus: Energy regulation: conventional power, The Legal 500 US (2019)
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
District of Columbia
U.S. Court of Federal Claims
U.S. Court of Appeals for the Federal Circuit
U.S. Supreme Court
Clerkship to Judge Peter Leisure of the US District Court for the Southern District of New York (1988 - 1989)