Topic: D&O Liability

The first criminal trial of stock options backdating conduct may end with the court finding that government prosecutors failed to present sufficient evidence of intent to support a conviction.  

The United States government appears to have conceded that a complete dismissal of indictments against 12 former KPMG partners is the only appropriate remedy in light of an earlier ruling that federal prosecutors violated the defendants’ constitutional rights.  The action, U.S. v. Stein, No. 05 Crim. 0888 (S.D.N.Y.), stems from allegations that KPMG employees participated in a scheme to defraud the IRS by creating fraudulent tax shelters for wealthy clients. 

The prosecution in the first criminal trial arising out the widespread corporate practice of stock options backdating concluded its case on Monday, July 2, 2007.  The defendant, Brocade Communications’ former CEO Greg Reyes, has moved to dismiss the case. 

On June 21, 2007, the Supreme Court issued a significant decision for securities litigators and D&O insurers that eliminated a circuit split over the interpretation of a key pleading requirement of the Private Securities Litigation Reform Act (the “PSLRA”). 

The first criminal trial  arising out of the stock options backdating scandals, involving Brocade Communications Systems, Inc.’s former CEO, Gregory Reyes, began on Monday, June 18, 2007 in the United States District Court for the Northern District of California.  Reyes is accused of intentionally falsifying board meeting minutes and disseminating false financial statements in order to conceal the backdating of stock options. 

The Delaware Court of Chancery recently granted a motion to dismiss a shareholder derivative action involving Sycamore Networks, Inc. that alleged misconduct in the issuance of stock options.