Mark Foster is a partner in Morrison & Foerster’s San Francisco office. His practice centers on representing public companies, and their directors and officers in securities fraud class actions, shareholder derivative lawsuits, and board investigations. Mr. Foster routinely defends clients in connection with shareholder lawsuits that allege violations of federal and state securities laws, breach of fiduciary duty, and insider trading. Mr. Foster has won dispositive pre-trial motions, defeated preliminary injunctions, prevailed on the merits at trial, and preserved victories on appeal.
Mr. Foster has extensive experience with defending claims asserted under the Securities Act of 1933, the Securities Exchange Act of 1934, the Private Securities Litigation Reform Act, the Securities Litigation Uniform Standards Act, the California Corporations Code, and the Delaware General Corporations Law. He also has defended cases relating to executive compensation decisions and disclosures, say-on-pay issues, and in connection with challenges to proposed mergers, acquisitions and other changes of control involving public companies.
Mr. Foster regularly helps corporate boards respond to various types of shareholder demands, including for board action and inspection of books and records. He also routinely advises directors, officers, and in-house counsel on disclosure and corporate governance matters to help avoid or minimize litigation risk. He has represented clients in a wide variety of industries, including semiconductors, solar, social media, consumer products, medical devices, e-commerce, software, hardware, data storage, pharmaceuticals, personal safety, defense engineering, telecommunications, entertainment, finance, and insurance. He has litigated in federal and state courts throughout California, the Delaware Court of Chancery, and in other jurisdictions throughout the country.
Mr. Foster has an active pro bono practice and has been awarded the State Bar of California's Wiley W. Manuel Award for Pro Bono Legal Services on multiple occasions. He has successfully represented immigrants in removal and asylum proceedings and indigent clients in section 1983 litigation involving claims arising under the Fourth and Eighth Amendments.
Before joining Morrison & Foerster, Mr. Foster was a securities litigator at Skadden, Arps, Slate, Meagher & Flom LLP. Mr. Foster graduated first in his class from Santa Clara University School of Law, and was elected to the Order of the Coif. While in law school, he was a Dean’s Fellow with a full-merit scholarship, served as senior production editor of the Santa Clara Computer High Technology Law Journal, and earned American Jurisprudence Awards in seven subjects.
Mr. Foster’s representative engagements include the following:
- The successful defense of Yahoo! and certain of its former officers in securities class actions that were dismissed with prejudice in In re Yahoo! Inc. Securities Litigation, 2012 WL 3282819 (N.D. Cal. Aug. 10, 2012), aff’d, --- Fed.Appx. ----, 2015 WL 2330190 (9th Cir. May 15, 2015) and Brodsky v. Yahoo!, Inc., 630 F. Supp. 2d 1104 (N.D. Cal. 2009).
- The successful defense of AspenBio Pharma, Inc. and certain of its directors and officers in a securities class action that challenged the accuracy of statements regarding a developing technology to rule out appendicitis in certain types of patients. The dismissal of the case in full was affirmed by the Tenth Circuit Court of Appeals. See Wolfe v. AspenBio Pharma, Inc., 2014 WL 5293685 (10th Cir. Oct. 17, 2014).
- The defeat of class certification and dismissal of all claims against Saba Software and its directors in connection with a purported shareholder class action relating to its financial statements and annual meeting during the pendency of a restatement.
- The successful defense of The Clorox Company and its directors in the defense of a shareholder class action that challenged the accuracy of proxy statement disclosures regarding say-on-pay executive compensation and a proposed increase to the number of authorized shares for a stock incentive plan. After defeating an attempt to enjoin the company’s annual meeting, the defendants prevailed on the merits at trial on a fully developed factual record. See Mancuso v. The Clorox Co., No. RG12-651653 (Cal. Super. Ct. Alameda Cnty.).
- The successful defense of Yahoo! Inc. and certain of its former directors and officers in connection with allegations relating to alleged false statements and alleged breaches of fiduciary duty. After the case was dismissed, Mr. Foster successfully argued on behalf of defendants before the California Court of Appeal for the Sixth District, which affirmed dismissal of the case with prejudice. See Leyte-Vidal v. Semel, 220 Cal.App.4th 1001 (2013).
- The successful defense, after defeating a preliminary injunction, of Ultratech, Inc. and its directors in connection with fiduciary duty claims relating to the proxy statement disclosures made in connection with the solicitation of shareholder approval of a proposal that increased the number of authorized shares available for issuance.
- The successful defense of a PepperBall Technologies, a publicly-traded technology company, and its former chairman against allegations of securities fraud in connection with an initial public offering in a six-week jury trial that resulted in a complete defense verdict.
- The successful defense of Infineon Technologies AG, Infineon Technologies N.A., and certain of its former officers and employees in a securities class action, where we obtain dismissal of certain defendants, certain causes of action, and the claims of 90% of a certified class after winning an interlocutory appeal before the Ninth Circuit Court of Appeal relating to novel issues of first impression concerning subject matter jurisdiction and class certification.
- Successfully led team to win a pro bono appeal in Wilkerson v. Wheeler, 772 F.3d 834 (9th Cir. 2014), a section 1983 case involving novel questions about jury instructions in a case arising under the Eighth Amendment.
- The successful defense of directors and officers The Cooper Companies, one of the world’s largest contact lens manufacturers, in a securities class action and derivative litigation.
- The successful defense of a global pharmaceutical company in securities litigation that was dismissed with prejudice.
- The successful representation of a consumer-products conglomerate and its directors and officers in defense of a shareholder’s derivative lawsuit.
- The representation of the audit committee for a publicly-traded company in connection with stock option granting processes and practices.
- The ongoing defense of the nation’s largest solar manufacturer in connection with a securities class action.
- The representation of clients in the defense of shareholder lawsuits challenging mergers and tender offers.
- The representation of clients in connection with inquiries and investigations by the Securities and Exchange Commission, and FINRA.