Brattleboro, VT 05301-3668
Intellectual property litigator – delivering smart solutions to complex cases, trying them when necessary.
Brad Fawley believes that litigation is nothing more than a business tool that when clumsily handled can cause considerable suffering for clients by wasting resources and needlessly increasing risk. However, when wisely, sensibly and proactively employed, litigation can serve as a useful and effective part of any business’ arsenal. It is this belief that guides Brad in his practice.
With dozens of trials against tough opponents across the United States, Brad brings the full brunt of his experience to bear to strategically and tactically provide an advantage for his clients and accomplish their objectives.
While Brad has plenty of wins to his credit, he is most proud of how he partners with his clients throughout the litigation process. He makes sure his clients always understand the road ahead and the costs, risks and benefits of traveling down it or any alternate path. Ultimately, his goal is to ensure that his clients are not surprised by the outcome of their case or the bill that follows.
- Through litigation, in combination with or as an adjunct to an underlying substantive dispute, Brad has successfully secured insurance coverage for dozens of clients that has resulted in the payment of tens of millions of dollars from his client’s insurers in defense costs and liability coverage for his clients – usually in situations where even the client’s insurance broker opined that no coverage was available.
- Six months prior to trial, Brad and Tom Kohler were chosen to replace prior boutique patent litigation counsel and try a multi-million dollar patent infringement claim asserted against their Canadian client. After completing fact and expert discovery, Brad and Tom forged a creative and beneficial settlement for their client.
- Litigated a copyright and trademark infringement case against a California architect in the District of Massachusetts that settled on the threat of issuance of an injunction against the architect.
- Litigated a trademark dispute in the Middle District of California for a UK company accused of infringement. After key pointed discovery revealed the weakness in the claims against his client, the case settled quickly.
- Initiated a trademark and counterfeiting case for a Connecticut client concerning a product made in China for a competitor. After suit was filed, the case settled favorably for the client without further litigation.
- Won a significant Markman decision in a multi-million dollar patent infringement case in the Eastern District of Michigan concerning cutting edge LED technology that resulted in summary judgment for his client. He argued the appeal of the Markman decision which was upheld by the Federal Circuit Court of Appeals. The case then settled.
- Achieved a significant multi-million dollar victory for his client, Black Diamond Equipment, Ltd., by defeating a claim of trademark infringement on the basis of laches (failure to assert one’s rights in a timely manner). The decision was affirmed on appeal. The litigation costs for the case were fully recovered because of Brad’s suit against Black Diamond’s insurer.
- Earlier in his career as an environmental litigator, Brad headed up a 12-member team of lawyers that tried a $100 million Superfund contribution case over three months against 125 corporate defendants. In other environmental cases, he recovered jury verdicts and settlements for toxic tort victims of $10.2 and $7 million.
University of Virginia School of Law, J.D., 1983 Editor, Journal of Natural Resources Law
Old Dominion University, M.S. Oceanography, 1980
Marietta College, B.S. Biology, 1977
U.S. District Court, District of Connecticut, 1983
U.S. Court of Appeals, Second Circuit, 1984
U.S. Court of Appeals, District of Columbia Circuit, 1990
U.S. District Court, District of Vermont, 1993
U.S. Court of Appeals, First Circuit, 2000
U.S. District Court, Eastern District of Michigan, 2008
U.S. District Court, Southern District of New York, 2009
U.S. Court of Appeals, Federal Circuit, 2009
U.S. Supreme Court, 2009
U.S. District Court, Eastern District of Texas, 2010
American Bar Association, 1984
New England Super Lawyers®: Intellectual Property Litigation, 2014-2017
- Altair Engineering, Inc. v. LEDdynamics, Inc., No. 07-CV-13150 (E. D. Mich. Mar. 24, 2009), aff’d in part and rev’d in part, 413 F. App’x 251 (Fed. Circ. 2011) (favorable Markman ruling for defendant in patent infringement suit and grant of summary judgment). On appeal to the Court of Appeals for the Federal Circuit, the appellate court affirmed the Markman decision but reversed the summary judgment ruling and remanded the case.
- Black Diamond Sportswear, Inc. v. Black Diamond Equipment, Ltd., No. 1:03-CV-278 (D. Vt. Aug. 25, 2005), aff’d, 2007 WL 2914452, 84 U.S.P.Q.2d 1758 (2d Cir. 2007) (summary judgment dismissal of plaintiff’s $20 million trademark infringement claim against client using defense of laches)
- State of Vermont v. Howe Cleaners, Inc. et al., No. 27-1-04 Wncv (Vt. Super. Ct., Washington County), aff’d, 2010 VT 70, 188 Vt. 303, 9 A.3d 276 (2010) (summary judgment dismissal of State’s claim against TD Bank for environmental response costs)
- Cassina S.p.A. v. T. Copeland and Sons, Inc., No. 1:06-CV-136, 2006 WL 3421849 (D. Vt. Nov. 27, 2006) (dismissal of copyright infringement suit on forum non conveniens grounds)
- Okemo Mountain, Inc. v. United States Sporting Clays Association, 376 F.3d 102 (2d. Cir. 2004) (reversal of district court, Murtha, J., on issue of release contract)
- Conservation Law Foundation v. Hannaford Bros. Co., 327 F. Supp. 2d 325 (D. Vt. 2004) (dismissal of Clean Water Act citizens’ suit for lack of jurisdiction)
- In re Stormwater NPDES Petition, 2006 VT 91, 180 Vt. 261, 910 A.2d 824 (2006) (reversal of agency decision regulating stormwater discharges)
- MyWebGrocer, LLC v. Hometown Info, Inc., 375 F.3d 190 (2d Cir. 2004) (reversal of district court’s (Sessions, J.) denial of preliminary injunction seeking to bar continued copyright infringement of grocery store product descriptions)
- Stephen Foote, Dana Foote, Tamara Foote and March Hill Corporation v. Fleet Financial Group, Fleet Bank - NH, Industrial Investment Corporation, Industrial Investment Corporation - NH, and Michael C. Demers, C.A.No: 99-6196 (Super. Ct., Providence, Rhode Island, 2004) (obtained $10.2 million jury verdict for pollution damages, settled for confidential amount)
- U.S. v. Davis, 261 F.3d 1, 53 ERC 1097 (1st Cir. 2001) (favorable culmination of 6 year $100 million CERCLA contribution litigation in District of Rhode Island [Torres, J.] on behalf of United Technologies Corporation)