Kelly L. Faglioni

Kelly practices as a commercial and regulatory litigator on products liability and post M&A disputes and issues and serves as one of the firm’s Deputy General Counsel focusing on law firm ethics, conflicts, and risk management issues. Kelly’s litigation experience spans both commercial and regulatory litigation before state and federal trial and appellate courts, regulatory agencies, and alternative dispute resolution forums. A significant amount of her litigation practice has focused on product issues that have included compliance, recall, investigations, retail sale, warranty, and products liability. She also has experience litigating professional malpractice, business torts, and post-M&A, contract, corporate governance, and partnership disputes. Her regulatory litigation practice has involved the nuclear and telecommunications industries. Kelly clerked for the Hon. A. Christian Compton, Justice of the Supreme Court of Virginia in 1992-93.

Products Experience

• Managed and consulted on recall or potential recall issues, including interaction with the responsible agency, such as CPSC, FDA, FTC, ATF, or state attorneys general.
• Consulted on numerous product and regulatory compliance and risk issues for consumer products manufacturers and suppliers.
• Consulted on or drafted and revised language related to warranty, indemnification, damages, and dispute resolution issues.
• Conducted orientation and training on product-related compliance and risk issues.
• Defended gas utility in multi-plaintiff personal injury actions arising from carbon monoxide exposure.
• Consulted on response to personal injury claims, including investigation steps, litigation hold, and insurance notification issues.
• Defended products liability claims in state and federal courts.
• Prevailed on summary judgment using sophisticated user defense in toxic tort/products liability action; upheld on appeal to Fourth Circuit.
• Consulted on sweepstakes, with focus on regulatory compliance, drafting of liability release, and anticipation and prevention of claims.

Law firm and corporate law department ethics, conflicts, and risk management

• Consulted with private equity firm to structure engagements and deal terms to address issues related to conflicts, confidentiality, file ownership, and privilege.
• Assisted in preparing responses to investigations arising from bar complaints.
• Advised on agreements for legal services from corporate law department to company affiliates.
• Advised, drafted, and assisted in compliance with law firm policies to address ethics, conflicts, and other law firm risk issues.
• Consulted on conflict and disqualification issues.
• Prepared and conducted training on ethics and risk issues for law firms and corporate law departments.
• Defended third-party (non-client) claims against law firm client (tortious interference with contract, conspiracy, aiding and abetting).
• Advised on ethics and partnership issues related to lateral partner moves.
• Advised on ethics associated with contingency fee agreements.
• Obtained dismissal of malpractice claim against attorney and law firm in Virginia Circuit Court.
• Represented former in-house counsel of company under government fraud investigation.

Post-deal related and other regulatory and commercial disputes

• Arbitrated post-deal indemnification disputes.
• Prevailed on summary judgment using statute of limitations defense in commercial securities fraud action.
• Mediated and settled various groundwater contamination cases involving both property damage and personal injury issues.
• Prevailed in jury trial on negligent hiring/respondent superior claim.
• Conducted internal corporate investigations for both public and non-profit companies.
• Litigated and consulted on various wholesale and retail telecommunications disputes involving both wireless and wireline carriers.
• Litigated numerous interconnection agreements between telecommunications companies before the Federal Communications Commission and various state regulatory commissions, including appeal to federal district court.
• Litigated implementation of Telecommunications Act of 1996 before various state commissions on behalf of local telephone service provider, focusing on universal service issues.
• Prepared appeal of Virginia state administrative agency decision to circuit court leading to negotiated resolution of dispute.
• Obtained partial demurrer in corporate governance dispute leading to settlement of remaining minority shareholder claims for rescission.
• Mediated and settled purchase price adjustment dispute arising from $300+ million stock sale agreement.
• Negotiated resolution of Virginia Securities Act claims with Virginia State Corporation Commission.
• Defended private equity firm in dispute with withdrawing partner under Virginia Uniform Partnership Act.
• Represented federal agency pursuing construction license for nuclear waste repository, including management of multi-million document production on searchable public website.
• Represented clients in partnership dissolution and winding up.

• American Bar Association, 2008-Present
• Member, CLE Committee for Center of Professional Responsibility for the ABA, 2011–2012
• Fellow, National Institute for Teaching Ethics and Professionalism, November 2011
• Adjunct Professor, Washington and Lee School of Law (Third year Practicum: The Full Life of an M&A Transaction, Fall 2010–Fall 2017)
• Lecturer, Professional Responsibility, University of Virginia (Spring semesters 2020-present)