Dana E. Foster

Partner, Washington, DC

Biography

Overview

Mr. Foster is a seasoned trial and appellate litigator with 20 years of litigation experience. He advises domestic and foreign clients in all aspects of complex civil and criminal matters, both at the federal and the state level. Mr. Foster's practice focuses on litigation in US courts and before US regulators, but he has broad experience in navigating the often intricate procedures of foreign tribunals and regulators, including the European Commission, Brazil's Administrative Council for Economic Defense, the Japan Fair Trade Commission, the Korea Fair Trade Commission, and Mexico's Federal Economic Competition Commission, among others.

Mr. Foster has particular expertise in class action defense matters, including aggressive strategies for offense-oriented discovery and success in motion practice before trial. 

Mr. Foster's trial achievements include representing Anthem as trial counsel in an action related to the efforts by Cigna's management to undermine Anthem's $54 billion acquisition of Cigna. The case involved competing claims for tens of billions of dollars, and it was closely followed by major media outlets. After a two-week bench trial, Mr. Foster achieved a landmark victory for Anthem, defeating each of Cigna's claims.

Mr. Foster also successfully defended Toshiba at two separate trials—one brought by a direct purchaser class and another by an opt-out Fortune 500 company—involving price-fixing claims in the LCD industry.

Mr. Foster's appellate victories include a rarely granted Rule 23(f) petition and a groundbreaking decision vacating class certification by the US Court of Appeals for the First Circuit in the In re Asacol Antitrust Litigation, in which the First Circuit ended plaintiffs' widespread use of post-trial affidavits to identify uninjured class members.

Mr. Foster also represents sovereigns and international organizations, both in litigation and commercial matters. Mr. Foster achieved a first-of-its-kind victory for International Finance Corporation (IFC), first in the US District Court for the District of Columbia and then in the DC Circuit, the latter of which issued the first published decision from a US Court of Appeals in which the court applied the Foreign Sovereign Immunities Act (FSIA) to international organizations. Collectively, the decisions preserved immunity from suit for IFC and other multi-development banks (MDBs) for the management of projects overseas. 

Mr. Foster advises clients in connection with governmental investigations and in conducting their own internal reviews.

Mr. Foster has deep experience with the Firm's pharma and sovereign clients.

Mr. Foster co-founded the Antitrust Group's Racial Justice Task Force, a coalition of over 90 attorneys and staff members across the Firm's global network taking concrete action in the areas of criminal justice reform, education, and economic development. Mr. Foster works with clients and non-profits in the United States and Europe representing indigent defendants in criminal and civil matters, providing job training to refugees, and expanding the Firm's urban debate presence to every US office, among many other initiatives. 

Pro bono work is also a pillar of Mr. Foster's practice. He is the Pro Bono Partner for the Washington, DC office. He has argued before the US Court of Appeals for the Fourth Circuit, and he regularly appears in the Domestic Relations branch of the DC Superior Court on behalf of both parents and children. Mr. Foster represents indigent individuals in both civil and criminal matters in state and federal courts. 

Mr. Foster lead's the Firm's recruiting efforts at the University of Virginia School of Law.

Prior to joining White & Case, Mr. Foster served in the US Navy as a Nuclear Electronics Technician aboard the Virginia-class nuclear guided missile cruiser USS Texas and the nuclear-powered aircraft carrier USS Enterprise.

Bars and Courts
District of Columbia Bar
New York State Bar
US District Court for the District of Columbia
US District Court for the Eastern District of New York
US District Court for the Southern District of New York
US Court of Appeals for the District of Columbia Circuit
US Court of Appeals for the First Circuit
US Court of Appeals for the Second Circuit
US Court of Appeals for the Fourth Circuit
US Court of Appeals for the Ninth Circuit
US Supreme Court
Education
JD
University of Virginia School of Law
BA
University of Virginia
Languages
English

Experience

Representative, publicly disclosed matters include:

Health Care Merger Dispute
Represents Anthem as trial counsel in its case against Cigna for breach of their merger agreement at a two-week bench trial in Delaware Chancery Court. Anthem is seeking relief from the $1.85 billion reverse termination fee and more than $20 billion in damages. The case is currently in post-trial briefing with a decision expected by the end of the year.

Pharma Antitrust Class Action
Defends Allergan/Warner Chilcott in defending direct and indirect purchaser claims under Sherman Act and state antitrust and consumer protections laws. Successes include vacated class-certification decision. US Court of Appeals for the First Circuit vacated class-certification decision after a successful (and rarely granted) Rule 23(f) petition on the eve of trial. The First Circuit decision bars the widespread use of aggregate proof and post-trial affidavits as a substitute for fact-finding by juries under the Seventh Amendment of the US Constitution and under Rule 23.

Immunities
Defends International Finance Corporation related to projects around the world involving complex issues of jurisdiction and immunity.

Cartel Defense (CRT)
Defends Toshiba in multijurisdictional engagement in the United States and abroad—e.g., Brazil, European Union, United Kingdom—in connection with allegations of price fixing, output restrictions, and market allocation in the cathode ray tube industry.

Cartel Defense (LCD)
Successfully defended Toshiba against allegations of price fixing of LCD panels. After a seven-week jury trial involving claimed damages of over $2 billion, jury deliberated less than a day and returned a unanimous verdict in favor of Toshiba.

Successfully defended Toshiba against class-action allegations of price fixing of LCD panels. After a six-week jury trial involving claimed class damages of over $3 billion, the jury found no recoverable damages against Toshiba. The case was named the 2012 "Litigation of the Year" by Global Competition Review, and was recognized by the Financial Times in its US Innovative Lawyers 2012 special report.

Cartel Defense (Shipping)
Successfully defended Stolt-Nielsen SA in its efforts to enforce its criminal Amnesty Agreement with the DOJ Antitrust Division. Following a three-week bench trial, obtained the dismissal of the indictment. The court ruled the Division's actions violated Stolt-Nielsen's constitutional due-process guarantees.

Freedom of Religion
Defends Chabad Rabbi in employment dispute involving non-compete clause and infringement of religious liberty. Successes include decision by Court of Appeals vacating trial court's preliminary injunction, which allowed client to practice his religion free of governmental entanglement. Bench trial of remaining claims and counterclaims expected later this year.

Adoption/Guardianship
Successfully represented client in obtaining permanent guardianship and then adoption of grand-nephew, including working with DC Child and Family Services and child’s guardian ad litem. After a two-week bench trial, court found in favor of client and issued final decree of adoption.

Veterans' Benefits
Represented veterans pursuing disability benefits for combat-related injuries.

Awards and Recognition

Dana Foster was named a "Litigator of the Week" by Global Competition Review for securing reversal of class certification in the Asacol® product-hopping litigation.