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“They cannot demonstrate that Gregory Reyes directed or brought about the inaccuracies ... The government has suffered setbacks in its probe into options backdating.

O co-founder Henry Samueli and the chipmaker’s one-time chief financial officer, also citing prosecutorial misconduct.

According to August 10, 2006 press reports, Brocade Communications settled the derivative lawsuit that shareholders had filed in federal court in San Francisco in connection with Brocade's options-award timing miscues, in exchange for an agreement to adopt certain therapeutic governance measures and the payment of $525,000 in legal fees.

Brocade agreed to pay a civil penalty of $7 million without admitting or denying the allegations in the SEC’s complaint.

“We are pleased the SEC has accepted Brocade’s offer of settlement and now have the investigation and matter concluded,” Tyler Wall, general counsel for Brocade, said in a statement. Attorney’s Office’s criminal case against Reyes and Stephanie Jensen, former vice president of human resources, is set to go to trial later this month.

In the Mercury Interactive case, the evidence arrayed against the company’s executives could increase the likelihood of a criminal prosecution, some attorneys said. ” The complaint contends that the executives pushed the recognition of revenue into subsequent quarters to “smooth earnings” and meet or exceed analysts’ expectations. “When you get a large number of allegedly falsified documents, it’s more likely that criminal charges can be filed,” said Peter Henning, a Wayne State University law professor and former attorney in the SEC’s enforcement division.

The government’s filing showcased a 1999 Power Point presentation by Abrams to Landan and others concerning the company’s financial picture. Prosecutors are certain, Henning said, to portray the Power Point slide as indicating “knowledge of fraud,” even if it was meant as a joke. The allegations will be contested at the appropriate time in court.” Melinda Haag, an attorney for Skaer, who became Mercury’s general counsel in fall 2000, said her client had no idea that the company operated in violation of any accounting rules.

The government accused four Mercury executives, including Amnon Landan, the company’s former chief executive, of perpetrating an elaborate fraud on investors.

The charges were filed as the SEC reached a million settlement with Mercury, now owned by Hewlett-Packard, and a million settlement with Brocade.

The Securities and Exchange Commission reached its first two settlements with companies in stock-option backdating cases Thursday as Brocade Communications Systems and Mercury Interactive agreed to pay fines totaling million.

At the same time, the government – which has been investigating more than 100 companies in the backdating scandal – leveled charges for the first time against former executives of Mercury Interactive.

A criminal investigation of former Brocade executives is continuing, and the SEC’s new charges now involve four former Mercury Interactive executives: Landan, former chief financial officers Sharlene Abrams and Doug Smith, and former general counsel Susan Skaer.

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