Yes, onetime McAfee general counsel Kent Roberts was acquitted for his role in a backdating scandal at his former company. But that doesn't mean he should be able to sue McAfee for defamation, invasion of privacy and malicious prosecution.
At least that's the argument that McAfee's lawyers at Orrick, Herrington & Sutcliffe are making in a motion requesting that Roberts' suit be deemed meritless under California's anti-SLAPP law. In the former GC's complaint, which we told you about last month, Roberts alleged that McAfee and its outside lawyers at Wilson Sonsini Goodrich & Rosati and Howrey set him up as the fall guy in McAfee's backdating scandal. (Roberts was fired by the company in 2006, indicted in 2007, acquitted on mail fraud charges in 2008, and eventually cleared of all charges, including those brought by the Securities and Exchange Commission.)
But Orrick's lawyers argue that Roberts' ultimate exoneration doesn't mean that the company lacked a reasonable belief that he had committed a crime. "An acquittal is not evidence of the lack of probable cause, nor is the prosecutor's decision to abandon charges," they write. "Instead, where the claim is based upon a criminal prosecution, probable cause exists if it was objectively reasonable for the defendant to suspect -- not know, but to suspect -- that the plaintiff committed a crime, even if the defendant did not understand what crime was committed."
Orrick's lawyers focus on California's anti-SLAPP statute, which, in their interpretation, bars suits that call into question a company's response to a government investigation. "It is difficult to imagine claims which fall more clearly within California's anti-SLAPP law," they write in the motion. "All claims are premised on McAfee's response to government-initiated investigations of its stock option practices, including a Securities and Exchange subpoena seeking records related to Roberts' 2006 disclosure that he had been involved in changing the price and date of his own underwater options grant."
Orrick declined additional comment on the motion, which is signed by partner Lynne Hermle and seeks attorney fees.
Hal Gillespie of Gillespie, Rosen & Watsky, an attorney for Roberts in the suit against McAfee, did not return our call.
This article first appeared on The Am Law Litigation Daily blog on AmericanLawyer.com.