In-House Counsel

Jurors Acquitted Ex-McAfee GC in Backdating Case Because of Intent Issues

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Former McAfee general counsel Kent Roberts was acquitted of mail fraud in a backdating prosecution on Friday. A law school graduate on the jury says the verdict was reached because prosecutors failed to prove intent.

Jurors acquitted Roberts of two counts of mail fraud that were based on allegations he made false submissions to the Securities and Exchange Commission to conceal a backdating scheme to enrich himself, the San Francisco Chronicle reports. Jurors deadlocked on a third count of falsifying records, and U.S. District Judge Marilyn Hall Patel recommended against a retrial. “This was not a case where any money was lost,” Patel said. “Mr. Roberts lost his job.”

Roberts never exercised the stock options, worth about $200,000 more because of the changed date. McAfee later lowered stated earnings by $137 million because of improper dates on nearly 53 million options.

William West, a retired contract negotiator for the Port of Oakland who attended Golden Gate law school, told the Recorder the government couldn’t prove Roberts intended to commit a crime on the date the options grant was changed.

“Nowhere in the e-mail trail was there an indication he had initiated what the government called ‘a scheme to defraud’ the company, or to get the option repriced,” West told the publication. “Certainly he went along with it, but there was no evidence he initiated what ultimately resulted in a repricing of his options. That was a big issue for me and the jury.”

West gave high marks to Roberts’ lawyer, a partner at Cooley Godward Kronish. “Stephen Neal, he was smooth as butter,” West said. “I know he didn’t come cheap.”

Roberts still faces civil charges by the Securities and Exchange Commission related to the backdating, the Recorder story says. He also could face a civil derivative suit because he was left out of a proposed settlement against McAfee officers and directors, the Daily Journal reports (sub. req.). A federal judge held off giving preliminary approval to the settlement on Friday because of objections from lawyers for Roberts and two other former company officials not included in the deal.

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