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An inconsistency in successive emails from Roberts–the first called January 15 the effective date, and the second called January 16 the effective date–supported these allegations.
The SEC also alleged that Roberts had acted “recklessly” in connection with the Matin Grant.
Gillespie, Gillespie, Rozen & Watsky, PC, Dallas, Texas, for the plaintiff-appellee-cross-appellant. Hermle, Orrick, Herrington & Sutcliffe LLP, Menlo Park, California, for the defendant-appellant-cross-appellee. The district court denied the motion as to Roberts’ malicious prosecution claims, but granted it as to his claims for defamation and false light invasion of privacy. We conclude that Roberts has not demonstrated that his claims have the requisite degree of merit to survive Mc Afee’s anti-SLAPP motion: Mc Afee had probable cause to believe Roberts was guilty of a crime, and Roberts’ claims for defamation and false light invasion of privacy are time-barred. In Roberts’ case, the Promotion Grant was originally authorized on July 5, 2000, but dated as of February 14, 2000, the date of his promotion, when the stock was trading at .62.
Mc Afee moved to strike Roberts’ claims pursuant to California’s anti-Strategic Litigation Against Public Participation (“anti-SLAPP”) statute. Because options grow more valuable as the stock price rises above the strike price, a lower strike price increases the value of the option.
The Board’s Compensation Committee had met and approved that grant on January 15, 2002, when the stock closed at .19.
As Corporate Secretary, Roberts attended the meeting.
(“Mc Afee”), alleges that Mc Afee maliciously prosecuted and defamed him in an attempt to deflect attention from largescale backdating of stock options within the company. Because an option’s strike price is typically equal to the stock price at the market’s close on the grant date, changing the grant date can change the strike price.
OPINION BY: TASHIMA OPINION TASHIMA, Circuit Judge: Kent Roberts, the former General Counsel of Mc Afee, Inc. Background Sometime late in 2000, Roberts allowed Terry Davis, Mc Afee’s Controller and Senior Vice President, to backdate 20,000 stock options that the company had issued to Roberts months earlier as a reward for a promotion (the “Promotion Grant”).1 Backdating refers to the practice of dating an option grant retrospectively — that is, at some earlier date when the company’s stock was trading at a lower price than on the date of the grant.
1 A stock option is “the right to purchase a share of stock from a company at a fixed price, referred to as the ‘strike price,’ on or after a specified vesting date.” Backdating of this sort is not illegal per se.
But even with the cloud of suspicion hovering over Davis, Roberts never disclosed the change Davis had “authorized” making to the Promotion Grant.
Roberts helped lead the internal Mc Afee investigation of Davis that resulted in Davis’ indictment and conviction, and he does not deny that Davis was also investigated for improperly lowering the strike price on certain stock option grants.
But, in conversations with Mc Afee’s outside counsel from Wilson Sonsini, its CEO, and two members of its Board of Directors during a shareholders’ meeting in New York the week after the CFRA report came out, Roberts voluntarily disclosed the revision that he and Davis had made to the Promotion Grant.
The CFRA report did not mention Roberts or any other Mc Afee employees by name; nor did it mention the Promotion Grant or any other grant that went to Roberts.