Thursday, January 17, 2008

Reyes Receives 21-Month Sentence for Options Backdating

Former Brocade Communications CEO Gregory Reyes received a 21-month prison term from U.S. District Judge Charles Breyer for his convictions related to backdating options grants at the company.  I expected the Judge to impose a lower sentence, perhaps dropping all the way down to home confinement or a split sentence, but he said that this was a case about "honesty" and that ""[e]very time Gregory Reyes falsified documents over a three-year period, he was lying . . . Corporate fraud is not a victimless crime. If widespread, it can affect the overall economy, employment, and, as we've seen with Enron, people's life savings."  Once the dreaded "E" word is invoked, no mercy will be shown.  A San Francisco Chronicle story (here) discusses the sentencing.

While Reyes got the benefit of Judge Breyer's decision to find no provable loss from the backdating (see earlier post here), thus sparing him a sentence that could have easily exceeded ten years, he did feel the court's wrath when the Judge bumped up the sentence two levels under the Sentencing Guidelines for obstruction of justice.  The basis for that decision was a statement in an affidavit Reyes filed in support of his co-defendant Stephanie Jensen's severance motion.  Reyes' key statement was, "I told Ms. Jensen that the options grant dates were the dates that I made the granting decisions.  Options were priced at the fair market value on the grant dates."  The district court granted the motion, relying on Reyes' affidavit that in a joint trial this exculpatory evidence would not come out.  At his trial, however, Reyes' counsel conceded that the options were priced based on "look backs" -- the defense didn't dare call it backdating -- and not as described in the affidavit, which was sealed. 

Judge Breyer obviously was perturbed by the affidavit because it led him to conduct two trials rather than one, and he announced that the sentence would have been fifteen months rather than the twenty-one months he imposed because of the obstruction.  The Judge and Reyes' counsel did not get along all that well during trial, and I suspect Judge Breyer felt he had been played by the defense.  One wonders why counsel allowed Reyes to file an affidavit with that kind of statement when the trial strategy on the selection of the options prices was not entirely consistent with it.  It may be the defense did not really focus on what was in the affidavit, which was filed well before Reyes' trial, when it made the final trial preparations, or perhaps did not think the Judge would grant the severance so the affidavit would not be of any significance.  Regardless of the reason, Reyes is sure to challenge the obstruction determination, no doubt arguing that his statement was not untruthful and did not exclude the "look backs" his lawyer conceded at trial.  The enhancement resulted in a 40% increase in the prison time, so the decision to file the affidavit turned out to be a costly one, at least for Reyes.

Reyes will remain free on bond pending appeal, with Judge Breyer acknowledging that because this was the first options backdating case to go to trial there were novel legal issues involved.  It is unlikely Reyes will have to report to prison for at least a year, assuming the conviction is upheld.  The sentence certainly sends a message to other defendants charged in backdating cases that they are likely to face prison terms if convicted.  And, unlike the Reyes case, other prosecutions involve defendants who benefited from the backdating, so the loss (or gain) issue will not be resolved quite as favorably as it was in this case if there is a conviction. (ph)

Securities, Sentencing | Permalink

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Stock options need to be accounted for. Backdated stock options need to be declared. It’s what’s right for the shareholders, who are the owners of the company after all. Executives shouldn’t forget it.

Posted by: greg reyes | Mar 9, 2010 6:09:05 PM

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