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SAN FRANCISCO � Inexact drafting by lawyers for former Brocade Communications System Inc. CEO Gregory Reyes may have gotten an extra six months tacked onto his stock-options backdating sentence. U.S. District Judge Charles Breyer sentenced Reyes to 21 months in prison on Jan. 16. Breyer also imposed a $15 million fine, but did not order Reyes to pay any restitution. Breyer stayed the entire sentence pending appeal. Breyer indicated, however, he would have imposed a shorter, 15-month sentence had Reyes not submitted a sworn affidavit to the court saying he did not backdate. Reyes filed that declaration in support of former human resources chief Stephanie Jensen’s motion to sever her trial from his. At Reyes’ trial, though, his lawyers acknowledged that he did backdate stock options, but said it was done in full view of the company’s finance department. Last week, the judge called Reyes’ statements in the declaration “seriously misleading” and an obstruction of justice because they suggested Reyes would provide exculpatory evidence for Jensen when, in fact, he could not. “The court must have truthful information in order for it to be just,” Breyer said evenly. Reyes’ attorney, Richard Marmaro, attempted to take the flak for the declaration, telling Breyer he had been the “proponent” of it, along with Jensen’s attorney, Keker & Van Nest partner Jan Little. The language in the declaration was a product of “poor drafting by the lawyers” and was not meant to apply to all of the disputed Brocade stock-options grants, said Marmaro, a partner at New York’s Skadden, Arps, Slate, Meagher & Flom. “To the extent this colors the court’s view of the case, it’s unfortunate,” Marmaro said in a soft voice, adding that he “vigorously disagrees” with the court’s conclusions. Little peered impassively at the exchange from a corner of the courtroom. She declined to comment after the proceedings. Reyes’ appeal to the 9th U.S. Circuit Court of Appeals will be led by Wilmer Cutler Pickering Hale and Dorr partner Seth Waxman, Marmaro said after the hearing. Waxman is a U.S. Supreme Court advocate who was solicitor general under President Bill Clinton. A jury convicted Reyes last year on 10 counts related to stock-options backdating, including securities fraud.

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