Roberts v. McAfee, Inc.: Backdating-Related Malicious Prosecution Claim Dismissed


The United States Ninth Circuit Court of Appeals has issued an important decision underscoring how serious an obstacle the element of lack of probable cause can be in trying to establish a claim of malicious prosecuton. Roberts v. McAfee, Inc., 2011 U.S. App. LEXIS 22521. Kent Roberts, the former General Counsel of McAfee, Inc., was charged with backdating stock options. McAfee conducted an internal review. Roberts and the board of directors gave very different accounts of what transpired. Lawyers for McAfee presented the results of their investigation to government lawyers. Roberts was indicted and the SEC filed a civil complaint against him.

Deposition testimony led the prosecutors to dismiss some of the charges. During trial, McAfee produced a series of exculpatory emails it had not previously disclosed. Additional evidence came to light which McAfee’s attorneys had not provided to the government. The jury acquitted Roberts of two charges and deadlocked on another. Prosecutors dismissed with prejudice the outstanding counts after the verdict issued and the SEC subsequently dismissed its civil case pursuant to a stipulation by which Roberts waived any claim to attorney’s fees.

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