Brad Fagg

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.

• Argued and won a significant case before the United States Supreme Court involving substantial issues of general administrative law and judicial review of agency actions under the Hobbs Act and specific issues of statutory authority of the Nuclear Regulatory Commission that are critical to the domestic nuclear power industry.
• 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.