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However, the fact of the option grants, their strike price and their eventual profitable exercise are in most instances disclosed.

Thus, in the context of options backdating, substantial doubt exists as to the viability of shareholder claims.

Public announcements that a company or the SEC is investigating possible backdating issues have spawned a rash of civil suits.

Two indictments have been issued and multiple guilty pleas have been entered in the most egregious cases. To a public corporation, the potential consequences of engaging in options backdating are manifold and can range from none whatsoever to having founders and CEOs going to prison. For example, in the case involving Brocade Communications, the SEC charged the former CEO and the former Vice President of Human Resources with criminally violating the securities laws.

In addition to the governmental investigations, more than 200 companies have completed, or are conducting, internal investigations — either because they want the comfort of knowing that they have not engaged in options backdating or they have an inkling that they did and want to be proactive in addressing the problem. In a follow-up study to his earlier work, Professor Lie estimated that 29 percent of 7,774 companies he surveyed backdated option grants to executives between 19. The facts of that case as set forth in the indictment were egregious.

Plaintiffs’ lawyers have seized upon this issue as yet another opportunity to bring cases against corporations and their officers and directors.

Such cases are brought under the guise of both class actions and shareholder derivative proceedings.

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