Mark R.S. Foster

“ I defend the wrongfully accused. Public companies and the individuals that lead them hire me to defend them when they are sued or investigated for allegedly misleading or harming investors.

Mark is a co-chair of Morrison & Foerster’s Securities Litigation, Enforcement, and White-Collar Defense Group. He focuses on representing public companies, and their officers and directors in securities fraud class actions, shareholder derivative lawsuits, shareholder demands, and related investigations.

Mark routinely defends clients against investor lawsuits that allege violations of federal and state securities laws, breach of fiduciary duty, and insider trading. He has extensive experience with litigation 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 Delaware corporate law. He also has extensive experience responding to demands on boards of directors, including demands for action, investigations, and books and records. Mark has won dispositive pre-trial motions, prevailed on the merits at trial, and preserved victories on appeal. His arguments have broken new ground in several areas of the law. Mark routinely provides counsel to clients on disclosure issues, including those related to adverse events, executive compensation, corporate governance matters, and insider trading issues.

Mark graduated first in his class from Santa Clara University School of Law, 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.

Representative Matters

• The successful defense of RH and certain of its current and former officers in connection with the defense of allegations of securities fraud relating to the launch of a new product line and inventory levels.
• The successful defense of LeapFrog Enterprises in connection with a shareholder class action arising out of the company’s acquisition by a foreign company. The court dismissed the claims with prejudice. See Manger v. LeapFrog Enterprises, Inc., 252 F. Supp. 3d 837 (N.D. Cal. 2017).
• The successful dismissal, on behalf of Banc of California, of derivative claims asserted under Maryland law for alleged breach of fiduciary duty asserted against its current and former directors and officers. Witmer v. Sugarman, 2018 WL 4846917 (C.D. Cal. Aug. 23, 2018).
• The successful defense of Solazyme (an early-stage biofuels company) and its directors and officers in a securities class action following a secondary stock offering. The plaintiffs asserted claims for alleged violations of Section 11 of the Securities Act of 1933 and Section 10(b) of the Securities Exchange Act of 1934. The plaintiffs alleged misleading statements were made relating to expansion plans and challenges with opening a new production plant overseas. The court dismissed all of the claims with prejudice. Norfolk Cty. Ret. Sys. v. Solazyme, Inc., 2016 WL 7475555 (N.D. Cal. Dec. 29, 2016); 2018 WL 3126393 (N.D. Cal. June 26, 2018).
• The successful defense of Yahoo! and certain of its current and former directors and officers in connection with a shareholder derivative lawsuit that challenged the company’s ability to operate in interstate commerce in alleged violation of the Investment Company Act of 1940. After prevailing on two successive motions to dismiss, Mark defended the case on appeal before the Ninth Circuit Court of Appeal, which affirmed in a published opinion. See UFCW Local 1500 Pension Fund v. Mayer, 895 F.3d 695 (9th Cir. 2018).
• The successful defense of LeapFrog Enterprises in connection with a securities class action lawsuit asserting securities fraud claims relating to the launch of a new product and the accounting of the company’s goodwill and long-lived assets. See In re Leapfrog Enter., Inc. Sec. Litig., 200 F. Supp. 3d 987 (N.D. Cal. 2016).
• Adoption by the Delaware Court of Chancery of the so-called incorporation condition, a novel proposal that Mark advanced to ensure that any documents produced in response to a books and records inspection demand under Section 220 of the Delaware General Corporations Law can be incorporated by reference in any subsequent motion to dismiss claims for breach of fiduciary duty. See Amalgamated Bank v. Yahoo! Inc., 132 A.3d 752 (Del. Ch. 2016).
• 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. After successfully transferring the case from the Central District of California to the District of Colorado (see Chipman v. AspenBio Pharma, Inc., 2011 WL 13274220 (C.D. Cal. Jan. 20, 2011)), the case was dismissed in full and was affirmed by the Tenth Circuit Court of Appeals. See Wolfe v. AspenBio Pharma, Inc., 2014 WL 5293685 (10th Cir. Oct. 17, 2014).
• The successful defense of The Clorox Company and certain of 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, Mark defended the case on appeal 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 of Yahoo! and certain of its 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) and Brodsky v. Yahoo!, Inc., 630 F. Supp. 2d 1104 (N.D. Cal. 2009);
• The successful defense of a publicly-traded technology company and its former chairman against allegations of civil 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 directors and officers of one of the world’s largest contact lens manufacturers in a securities class action;
• 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 ongoing defense of a semiconductor manufacturer and certain of its executives in a securities fraud class action;
• The representation of the audit committee for a publicly-traded company in connection with stock option granting processes and practices;
• The representation of clients in the defense of shareholder lawsuits challenging mergers and tender offers; and
• The representation of clients in connection with investigations by the Securities and Exchange Commission.