Robert P. Varian

Senior Counsel

San Francisco


Read full biography at www.orrick.com
Robert P. Varian, senior counsel, served as a partner in Orrick's San Francisco office for 12 years, and was previously a partner in Clifford Chance US LLP and Brobeck, Phleger & Harrison.

He has been named to Lawdragon's Top 500 Leading Lawyers in America list, one of the most elite accolades in the legal profession, and as one of the top 20 lawyers of the year by The California Lawyer. He is one of the few attorneys in the United States who has successfully tried securities class actions to verdict (twice), and won one of the National Law Journal's top 10 defense verdicts in the United States in the major securities class action jury trial.

Bob has extensive experience in defending securities class actions, SEC investigations and enforcement proceedings, and derivative lawsuits throughout the United States. He has led a wide variety of internal investigations centered in the United States and China, and has represented executives, directors and auditors in internal investigations, SEC investigations and enforcement actions, and in securities class actions and other shareholder litigation. He also has extensive experience in defending consumer class actions and complex business cases, and special expertise in representing Chinese companies and individuals in litigation and investigations.

Bob has successfully litigated numerous high profile cases that have received coverage in the national media.

Posts by: Robert Varian

Tracing Meets Twombly: Ninth Circuit Sets Section 11 Pleading Standards For Aftermarket Purchasers

In a precedent setting decision, the Ninth Circuit affirmed dismissal of a putative class action in In re Century Aluminum Co. Securities Litigation, significantly raising the pleading bar in Section 11 cases. Plaintiffs alleged that Century Aluminum and its underwriters, Credit Suisse and Morgan Stanley, issued false and misleading statements in connection with a secondary offering. The Ninth Circuit applied the Twombly/Iqbal “plausibility” standard, holding that those decisions no longer make it possible for plaintiffs to simply allege without plausible supporting facts that their shares can be “traced” back to a secondary offering. The court’s decision in Century Aluminum may mean that Ninth Circuit plaintiffs filing suit under Section 11 who rely on aftermarket purchases, and cannot otherwise plead plausible facts they purchased in the secondary offering itself, face a near impossible uphill battle at the pleading stage when alleging tracing.

Section 11 provides a remedy to shareholders who purchase securities under “a materially false or misleading registration statement.” When shares are issued under only one such registration statement, this tracing requirement is not a problem. However, when shares are issued under multiple registration statements, tracing back to the allegedly misleading registration statement can be extremely difficult. The court acknowledged that tracing to a secondary offering is “often impossible,” but noted that the tracing requirement “is the condition Congress has imposed for granting access to the ‘relaxed liability requirements’ that Section 11 affords.”

Century Aluminum issued 49 million shares in an Initial Public Offering that were already trading when plaintiffs purchased their shares. In a prospectus supplement on January 28, 2009, an additional 25 million shares entered the market. Plaintiffs alleged they had standing to pursue a Section 11 claim because they “purchased Century Aluminum Common Stock directly traceable to the Company’s Secondary Offering.” In support of their tracing theory, plaintiffs argued that their shares were purchased on dates that showed sharp spikes in trading activity, indicating the flood of new shares as a result of the allegedly misleading prospectus supplement. READ MORE

9th Circuit Says Yes to Restatement, Yes to the SEC, and a Big No to Backdating Maxim CFO

On May 15, 2012, the Ninth Circuit Court of Appeals affirmed the decision of the district court finding in favor of the Securities Exchange Commission (“SEC”) on allegations that Carl Jasper, the former Chief Financial Officer of Maxim Integrated Products, Inc., violated various provisions of the securities laws in connection with the company’s stock options backdating scheme.  SEC v. Jasper, Case No. 10-17064 (9th Cir. May 15, 2012).  The court found that for ten consecutive quarters, Maxim granted backdated options with an exercise price equal to the lowest price of Maxim stock for each quarter.  READ MORE