Francis J. Burke, Jr. is a partner and litigation lawyer with Foley & Lardner LLP where his practice emphasizes complex civil and criminal litigation and trials, including individual, multiparty and class action claims and complex civil and criminal parallel proceedings. He also focuses on white collar criminal defense, antitrust and securities enforcement and other governmental enforcement actions, and state and federal false claims matters. Mr. Burke's practice spans the financial services, technology, health care, life sciences, manufacturing, computer, software, Internet, defense contractor, real estate, hospitality, aerospace and defense, accounting and energy industries. He is a member of the Government Enforcement, Compliance & White Collar Defense; Antitrust; Business Litigation & Dispute Resolution; Export Controls & National Security; Privacy, Security & Information Management; Private Equity & Venture Capital; Securities Enforcement & Litigation; Trade Secret Noncompete Litigation; and Transactional & Securities Practices. Mr. Burke is also a member of the firm's Energy, Health Care, Life Sciences and Technology Industry Teams.
Prior to joining Foley, Mr. Burke was a partner with other international law firms where he held leadership roles. He also served as an assistant U.S. attorney, concentrating on white collar criminal prosecution.
SECURITIES LITIGATION AND ENFORCEMENT, CORPORATE GOVERNANCE, AND SHAREHOLDER DERIVATIVE SUITS
Mr. Burke has handled matters involving issuers, underwriters, broker-dealers, officers, directors, attorneys, accounting firms, banks, and insurance companies. These matters have included allegations of civil and criminal violations of federal and state securities and racketeering laws, corporate fraud, breach of fiduciary duty, and derivative claims arising from IPOs, secondary trading cases and sales of businesses, often involving failure of internal controls. Several of the cases have included applying accounting and valuation principles to complex financial transactions.
Mr. Burke also represents clients in a variety of corporate settings concerning officer and director duties and liabilities, including internal investigations, responses to shareholder demands and in derivative and shareholder litigation. He has counseled corporate officers and directors and investment advisers, venture capital and private equity funds regarding corporate governance, and fiduciary duties in structuring transactions, and board and audit committee membership duties and responsibilities, including audit committee responses to whistleblower hotline complaints and internal and external audit reports.
Mr. Burke has also handled litigation and arbitrations arising from failed or underperforming merger and acquisition transactions arising from stock or asset purchase agreements, and claims arising from violations of representations and warranties, material adverse change and material adverse effect clauses, holdbacks, clawbacks, and deferred purchase price payments through earnout agreements. These matters have involved manufacturers, aerospace and defense companies and technology companies.
ANTITRUST INVESTIGATIONS AND LITIGATION
Mr. Burke has handled a variety of antitrust cases, including defending government investigations of mergers and acquisitions, grand-jury investigations, CID investigations, class actions, and individual actions that involve allegations of price fixing, unlawful distributorship terminations, group boycotts, other horizontal and vertical restraints, and alleged violations of Clayton Act Section 7 regarding joint ventures or mergers. He also advises clients concerning the antitrust aspects of various transactions, sales arrangements, and licensing arrangements. These matters have covered a wide range of industries from basic raw materials to manufacturing to hospitality to Internet transactions.
COMPLEX COMMERCIAL LITIGATION, CIVIL FALSE CLAIMS AND QUI TAM ACTIONS
Mr. Burke's commercial litigation case experience includes diverse allegations, including financial and loan disputes, contract litigation breach of fiduciary duty, business torts, and fraud involving manufacturing, real estate, financial services, insurance, technology, utilities, oil and gas, and coal companies. Many of the cases have involved business failures which required financial analysis of the causes of the failure and who caused it. These matters have included adversary proceedings in or related to bankruptcy proceedings. He has also pursued and defended SEC receiver claims.
Mr. Burke also defends state and federal false claims matters brought by qui tam relators on behalf of federal, state and local governments for losses they allegedly suffered as a result of false claims. The claims are filed under seal and the governmental entities have a period of time in which they may take over the litigation. Clients have included defense contractors, pharmaceutical and life sciences companies, health care providers and government vendors and services providers.
WHITE-COLLAR CRIMINAL DEFENSE
Mr. Burke has represented individuals, corporate employees, officers and directors, partnerships, and corporations in federal and state grand jury investigations, agency investigations, and trials. He has handled matters involving criminal antitrust violations, securities fraud, False Claims Act, export controls, IEEPA, ITAR, FCPA, mail and wire fraud, tax fraud, the Bank Secrecy Act and other money-laundering issues, federal and state program fraud, and environmental health and safety violations.
INTERNAL INVESTIGATIONS AND COMPLIANCE
Mr. Burke counsels clients in managing the risks of fraud and in defending corporate interests in investigations initiated by federal and/or state law-enforcement. He has broad experience in conducting internal investigations into allegations of misconduct and structuring an investigation in a manner that minimizes the potential liability for the corporation while controlling costs and keeping disruption in the workplace to a minimum. Mr. Burke represents public and private companies seeking to adopt corporate fraud prevention, detection, and compliance programs. He advises clients regarding the requirements for programs that will comply with the revised organizational sentencing guidelines, state fiduciary duty laws, and relevant government enforcement policy directives that impact corporate compliance.
TRADE SECRET AND COMPUTER FRAUD AND ABUSE CLAIMS, AND NON-COMPETE AGREEMENTS
Mr. Burke has pursued and defended claims of alleged theft of trade secrets and employee raiding and associated claims for breach of confidentiality agreements, breach of fiduciary duty or usurpation of corporate opportunity involving manufacturing, sales, technology, business services and IT security companies. Mr. Burke's e-commerce experience includes the Federal Computer Fraud & Abuse Act, the Electronic Communications Privacy Act, and issues concerning the retention, collection, discovery and admissibility of electronic evidence.
PROFESSIONAL MALPRACTICE LITIGATION
Mr. Burke has handled individual, multiparty, and class-action cases and license proceedings alleging accounting and attorney and malpractice arising from auditing work, tax advice, IT consulting, legal advice, and litigation handling.
REAL ESTATE LITIGATION
Mr. Burke's real estate litigation case mix has included enforcement or defense of real estate agreements or leases and the pursuit or defense of collections on notes, loan agreements, deeds of trust and guaranties relating to real estate loans. Many of the cases have involved real estate valuations, appraisals and feasibility analyses of the real estate projects.
Mr. Burke has considerable experience involving applying technology to the practice of law, particularly involving computerized trial presentations and graphics systems, electronic discovery, electronic document management and retention, litigation support databases, computerized transcript management, document management, case management, and evidence management.
Mr. Burke has been recognized in The Best Lawyers in America since 2007 for Commercial Litigation and White Collar Criminal Defense, in the 2007-2011 and 2013-2014 California Super Lawyers® lists for Securities Litigation, and in Chambers USA: America's Leading Business Lawyers from 2007 through 2012 for General Commercial Litigation. He has been Peer Review Rated as AV® Preeminent™, the highest performance rating in Martindale-Hubbell's peer review rating system.
Publications and Presentations
Mr. Burke frequently speaks on diverse topics, including the False Claims Act, health care, pharmaceutical and government contractor whistleblowers, securities litigation, eDiscovery, retention of electronic documents, electronic and digital evidence, the use of technology pretrial and in trial, trade secrets, corporate internal investigations, securities liability of officers and directors, computer crimes, environmental crimes, developing corporate compliance programs, representing high-tech companies, international litigation, partnering between inside and outside counsel, alternative and value billing, litigation management techniques, using experts, accountant malpractice, and basic trial and deposition skills. He has written and spoken extensively on eDiscovery and has worked with litigation support databases for most of his career, most recently with large e-mail populations. Recently, he co-authored the article, "FTAIA Analysis: 7th Circ. vs. 2nd Circ.," Law360 (August 5, 2014).
Mr. Burke earned a J.D. from Harvard Law School. He earned an A.B. from Cornell University (magna cum laude).
Mr. Burke is admitted to practice in California, Arizona, Colorado, and Washington. (Also at Palo Alto Office)