James E. Burns Jr

James E. Burns Jr.,

senior counsel in Orrick’s San Francisco office, is a member of the Litigation Division. Mr. Burns’ focuses his practice on litigation and arbitration of complex business and securities disputes, including claims arising from mergers and acquisitions, venture capital investments, shareholder class actions and derivative cases. Mr. Burns conducts internal investigations for clients and represents them in regulatory investigations and proceedings before the SEC and state securities regulatory authorities. He has broad experience in jury and bench trial matters before federal, tax and state courts. He has handled numerous class actions and litigated multi-district cases involving claims under RICO and federal and state securities law, as well as professional services malpractice claims and various business torts.

Mr. Burns has extensive experience in commercial arbitrations before various arbitration and mediation tribunals, including the American Arbitration Association, the New York Stock Exchange, the National Association of Securities Dealers and privately chosen arbitrators. He acts on behalf of technology companies, venture capitalists, securities issuers, directors, brokers, underwriters, promoters and mutual funds.

Mr. Burns has represented Retek, Inc., Touch America Holdings, Inc., RS Investment Management, Inc., Cisco Systems, Inc., Cygnus, Inc., Everen Securities Inc., Chiron Corp., Intevac, Inc., Accel Partners, TA Associates, Kenetech, Pope & Talbot, Citrix Systems, Inc., Everex and The Photonics Fund.

The following is a list of Mr. Burns’ recent representative cases.

Oracle/Retek Merger Litigation. Represented Retek, Inc., a software applications company, and subsequently Oracle, in shareholder merger litigation. Defeated an attempt to enjoin a tender offer for Retek stock by Oracle and after the acquisition was completed was successful in having the Minnesota state court dismiss the entire action with prejudice.
Lego et al. v. Stratos Lightwave. Represented selling shareholders led by The Photonics Fund, a venture capital fund, in a dispute over the acquisition of Tsunami Optics by Stratos Lightwave. Bench trial in The Northern District of California before Judge Ware in December 2004.
RS Investments. Represented a mutual fund advisor in proceedings before the SEC and New York Attorney General. The proceedings were commenced as part of the mutual fund investigations of 2003-2004. Successfully concluded a favorable settlement for our client with each of the regulators.
Everex Securities Class Action II. After a reversal on appeal of the directed verdict in the first Everex trial, the case was retried in its entirety in early 2002 in the United States District Court for Northern California. After a six week trial before Judge Charles Breyer and a nine person jury, the jury returned a unanimous verdict in our client’s favor, absolving defendant of all liabilities.
Everex Securities Class Action I. Participated in the first shareholder class action tried in the Northern District of California in over seven years. Trial before a jury, presided over by Judge Legge. The case ended in a directed verdict giving our client a total victory.
Caffrey v. Kurzweil Applied Intelligence, Inc., et al. Represented underwriters in a securities class action opt-out case in the Northern District of Texas. On the first day of trial the court ruled favorably on our motion in limine and, among other things, excluded as speculative any testimony from plaintiff’s damage experts. Plaintiff immediately settled with our clients for a minuscule amount.
Ho v. Cresswell. Represented defendants in San Francisco Superior Court jury trial of dispute over creation and sale of interest in an R&D limited partnership. After a three month trial, the jury returned a verdict absolving defendants of any liability. Received approximately $800,000 in attorney’s fees from trial court as prevailing parties.
Webster, et al. v. Omnitrition International. Represented defendants in a large securities class action in the Northern District of California before Judge Sandra Brown Armstrong arising out of a purported sale of distributorships in direct selling organization that markets nutritional supplements. Court entered summary judgment for clients and sanctioned opponents for procedural irregularities.
Winn, et al. v. Plaza Pacific, et al. Represented defendants in securities class action before Judge Patel of the Northern District of California. Case involved claims of securities fraud in the organization and sale of real estate limited partnership interests. After extensive litigation, the Court entered summary judgment in favor of clients.
Kalashian, et al. v. Advent VI, et al. Represented venture capitalists in dispute with founders of a company over the dilutive effect of venture investments made over a period of years. The case proceeded to a jury trial in Santa Clara Superior Court. After five weeks of trial, reached a settlement favorable to clients.
Sierra Ventures et al. v. Chronimed. Arbitration before the AAA relating to the entitlement to amounts escrowed in connection with the acquisition of a Sierra Ventures portfolio company by Chronimed. After an arbitration hearing, client, which represented the shareholders of the portfolio company, was found to be entitled to the funds. The award represented a complete victory for client.
Cygnus, Inc v. Pharmacia and Upjohn. Arbitration before the AAA involving disputes arising out of licensing agreements for the Nicotrol smoking cessation patch. The two week arbitration ended in a very successful award that vindicated the positions taken by client.
Pope & Talbot, Inc. v. Commissioner of Internal Revenue. Represented petitioner in a case that centered on the valuation, for corporate income tax purposes, of assets spun off by a corporation to a publicly-traded limited partnership. A two week trial in the Tax Court resulted in a very favorable valuation.
Mulqueeney, et al. v. Kenetech U.S. Windpower. Represented respondents in AAA arbitration of dispute concerning royalties from operation of electricity generating wind turbines. Six month arbitration before George Coombe resulted in an award that was a complete victory for clients.
Intevac Inc. v. Varian Associates. Represented petitioner Intevac in arbitration dispute arising out of sale of several Varian businesses. Dispute centered on price to be paid for divisions under the acquisition agreement. The price was to be calculated on balance sheets that were to include reserves for costs to complete ongoing contracts and reserves for ongoing development projects. The evidence at hearing delved into the technology at issue, including night vision technology and epitaxial growth devices. A two week arbitration before privately chosen arbitrators resulted in substantial monetary award for our client.
Ford v. Plaza Books. Represented plaintiff in a four week jury trial in Santa Cruz Superior Court in a case involving damages arising from the collapse of a building in the Loma Prieta earthquake. Jury returned a substantial verdict for our client.

Prior to joining Orrick, Mr. Burns was a partner and West Coast Managing Partner at Clifford Chance, a partner and managing partner at Brobeck, Phleger & Harrison and a partner at Chickering & Gregory.

Good to know

Areas of Practice 1) Securities Litigation & Regulatory Enforcement, 2) Derivative Suits, 3) Internal Board and Corporate Investigations, 4) Mergers & Acquisitions Litigation, 5) SEC & Regulatory Investigations & Enforcement Actions and 6) Securities Class Actions
Law School J.D., University of Chicago Law School, 1972
Education B.A., St. Mary's College, 1968
Bar Member / Association American Bar Association,State Bar of California; Association of Business Trial Lawyers,State bar of California
Most recent firm Orrick, Herrington & Sutcliffe LLP
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