Kent Roberts v. McAfee, Inc.
FILED OPINION (BETTY BINNS FLETCHER, STEPHEN R. REINHARDT and A. WALLACE TASHIMA) Costs on appeal are awarded to McAfee. In No. 10-15670, the order of the district court is AFFIRMED. In No. 10-15561, the order of the district court is REVERSED and REMANDED. Judge: AWT Authoring. FILED AND ENTERED JUDGMENT.  [10-15561, 10-15670]
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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENT H. ROBERTS,
KENT H. ROBERTS,
4:09 cv-4303 PJH
4:09 cv-4303 PJH
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted
October 14, 2011—San Francisco, California
Filed November 7, 2011
Before: Betty B. Fletcher, Stephen Reinhardt, and
A. Wallace Tashima, Circuit Judges.
Opinion by Judge Tashima
ROBERTS v. MCAFEE
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Hal K. Gillespie, Gillespie, Rozen & Watsky, PC, Dallas,
Texas, for the plaintiff-appellee-cross-appellant.
Lynne C. Hermle, Orrick, Herrington & Sutcliffe LLP, Menlo
Park, California, for the defendant-appellant-cross-appellee.
TASHIMA, Circuit Judge:
Kent Roberts, the former General Counsel of McAfee, Inc.
(“McAfee”), alleges that McAfee maliciously prosecuted and
defamed him in an attempt to deflect attention from largescale backdating of stock options within the company.
McAfee moved to strike Roberts’ claims pursuant to California’s anti-Strategic Litigation Against Public Participation
(“anti-SLAPP”) statute. The district court denied the motion
as to Roberts’ malicious prosecution claims, but granted it as
to his claims for defamation and false light invasion of privacy. Both sides appeal. We conclude that Roberts has not
demonstrated that his claims have the requisite degree of
merit to survive McAfee’s anti-SLAPP motion: McAfee had
probable cause to believe Roberts was guilty of a crime, and
Roberts’ claims for defamation and false light invasion of privacy are time-barred. Accordingly, we affirm in No. 1015670, and reverse in No. 10-15561.
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ROBERTS v. MCAFEE
Sometime late in 2000, Roberts allowed Terry Davis,
McAfee’s Controller and Senior Vice President, to backdate
20,000 stock options that the company had issued to Roberts
months earlier as a reward for a promotion (the “Promotion
Grant”).1 Backdating refers to the practice of dating an option
grant retrospectively — that is, at some earlier date when the
company’s stock was trading at a lower price than on the date
of the grant. Because an option’s strike price is typically equal
to the stock price at the market’s close on the grant date,
changing the grant date can change the strike price. Because
options grow more valuable as the stock price rises above the
strike price, a lower strike price increases the value of the
option. In Roberts’ case, the Promotion Grant was originally
authorized on July 5, 2000, but dated as of February 14, 2000,
the date of his promotion, when the stock was trading at
$29.62. Davis changed the date of the grant from February 14
to April 14, when the stock price closed at $19.75. This effectively lowered the strike price on Roberts’ options by about
$10 per share.
Backdating of this sort is not illegal per se. It becomes
fraudulent where the company has not authorized the practice,
or where the company does not report the backdating as a
compensation expense. In the first situation, backdating augments the option’s value, which raises the cost of the option
to the company without shareholders’ permission. See United
States v. Treacy, 639 F.3d 32, 38, 48 (2d Cir. 2011) (affirming
defendant’s conviction for backdating stock options without
authorization). In the second situation, backdating results in
an overstatement of earnings, which misleads investors. See
A stock option is “the right to purchase a share of stock from a company at a fixed price, referred to as the ‘strike price,’ on or after a specified vesting date.” United States v. Reyes, 577 F.3d 1069, 1073 (9th Cir.
2009). “In general, companies grant options with a strike price equal to the
market price on the date the options are granted.” Id.
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Reyes, 577 F.3d at 1073. The propriety of backdating the Promotion Grant turns on whether Davis and Roberts had the
authority to backdate Roberts’ options, and whether a compensation expense should have been recorded to account for
the later-added benefit Roberts received.
Roberts’ involvement in backdating the Promotion Grant
came under scrutiny in 2006, during a nationwide probe into
options backdating that implicated McAfee. On May 16,
2006, the Center for Financial Research and Analysis
(“CFRA”) published a report identifying seventeen companies
that, judging by data showing that they had granted large
numbers of options “at exercise prices and dates that matched
exactly or were close to a 40-day low in the[ir] . . . stock
price,” had likely engaged in widespread backdating. McAfee
was on the list. The report identified five suspicious McAfee
option grants. Within days of the report’s publication,
McAfee began an internal review of its stock option practices,
and the Securities and Exchange Commission (“SEC”)
opened an investigation the following week.
The CFRA report did not mention Roberts or any other
McAfee employees by name; nor did it mention the Promotion Grant or any other grant that went to Roberts. But, in
conversations with McAfee’s outside counsel from Wilson
Sonsini, its CEO, and two members of its Board of Directors
during a shareholders’ meeting in New York the week after
the CFRA report came out, Roberts voluntarily disclosed the
revision that he and Davis had made to the Promotion Grant.
What, exactly, Roberts said in these conversations is
unclear. He contends that he raised the issue of the Promotion
Grant only “in the spirit of thoroughness,” and to mollify
McAfee’s CEO, George Samenuk, who had been involved in
a large options grant that Roberts had flagged as problematic
and whom Roberts worried might view the investigation as a
personal attack. Roberts says he did not acknowledge any
problems with his Promotion Grant, and he perceived none.
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ROBERTS v. MCAFEE
Rather, Roberts claims to have explained in each conversation
that he believed Davis had authority to change the strike
price, and that such a change was appropriate because the
original grant date was incorrect.
The CEO and directors told a different story. Through lawyers at Howrey & Simon, whom a special committee of the
Board retained to conduct an independent investigation of the
backdating scandal, and later through deposition testimony,
these individuals told the SEC and the U.S. Department of
Justice (“DOJ”) that Roberts had described “agonizing” over
the issue and admitted that what he had done was wrong.
Davis had a criminal history that made Roberts’ story, even
his version of it, look bad. About three years after the two
men modified the Promotion Grant, Davis pleaded guilty to
an accounting fraud aimed principally at concealing the financial consequences of low demand for McAfee products. Roberts helped lead the internal McAfee investigation of Davis
that resulted in Davis’ indictment and conviction, and he does
not deny that Davis was also investigated for improperly lowering the strike price on certain stock option grants. But even
with the cloud of suspicion hovering over Davis, Roberts
never disclosed the change Davis had “authorized” making to
the Promotion Grant.
Whatever Roberts said to the CEO and directors at the May
2000 shareholders’ meeting—whether he admitted culpability
or not—the conversations led to his downfall at McAfee.
Samenuk immediately asked Roberts to propose potential
disciplinary measures; four days later, the Board voted to fire
Roberts. McAfee’s outside counsel informed the SEC of the
termination, and the next day the company said in a press
release posted on its website that Roberts had been fired
because of an “improper” incident related to employee stock
options. In November 2006, the Howrey lawyers, after an
investigation that included periodic reports to the SEC and
DOJ, presented their conclusions to the government agencies.
ROBERTS v. MCAFEE
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The presentation highlighted Roberts’ modification of the
Promotion Grant. It also highlighted Roberts’ involvement in
backdating two other stock option grants approved in January
2002—a grant of 420,000 options to Samenuk (the “Samenuk
Grant”) and a grant of 500,000 options to a newly hired executive named Art Matin (the “Matin Grant”).
In late February 2007, the DOJ procured an indictment and
the SEC filed a civil complaint. Both actions focused on the
Promotion Grant, but not exclusively. They also accused Roberts of wrongdoing in connection with the Samenuk Grant.
The Board’s Compensation Committee had met and approved
that grant on January 15, 2002, when the stock closed at
$27.19. As Corporate Secretary, Roberts attended the meeting. The next day, the stock dipped to $25.43, and, according
to the indictment and SEC complaint, Roberts unilaterally
decided to re-price the options to that lower price. He then
allegedly falsified the Board minutes to make it appear that
the Board had voted to price the options as of the 16th, rather
than the 15th. An inconsistency in successive emails from
Roberts—the first called January 15 the effective date, and the
second called January 16 the effective date—supported these
The SEC also alleged that Roberts had acted “recklessly”
in connection with the Matin Grant. According to its complaint, the Compensation Committee voted on January 15,
2002, to grant Matin the options with a strike price corresponding to the market price of October 30, 2001, even
though Matin did not begin work at McAfee until December
2001 and the company’s options policy prohibited option
grants with effective dates before an employee’s date of hire.
Roberts, who attended the January 15, 2002, meeting, subsequently approved corporate disclosures that represented—
incorrectly—that Matin had begun work on October 30, 2001.
A few months before Roberts’ criminal trial began, the tide
began to turn in his favor. The SEC’s deposition of Ed Har-
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ROBERTS v. MCAFEE
per, a member of McAfee’s Board and Compensation Committee, produced testimony that undermined the Samenuk
Grant allegations. Although Harper seemed unable to remember exactly what the Compensation Committee had decided
during its January 15 meeting, he said he had no reason to disagree with the indication in the minutes of that meeting that
the Committee—not Roberts—had decided to price the
Samenuk Grant as of January 16. A few weeks after that
deposition, federal prosecutors dropped the charges based on
the Samenuk Grant, leaving the Promotion Grant as the sole
subject of the criminal case.
After the first day of the criminal trial, Roberts got more
good news. McAfee belatedly produced a series of emails
showing that Roberts had openly corresponded with an
employee of Stock Options Solutions, Inc. (“SOS”), the contractor that tracked and audited McAfee’s stock options, about
finalizing the revised Promotion Grant and having it entered
into the company’s database. These emails, which McAfee
had failed to produce in response to earlier subpoenas, called
into serious question an allegation in both the indictment and
SEC complaint that Roberts and Davis had secretly changed
the information in the database by themselves.
Perhaps most damaging to the criminal case, however, were
some characteristics of the Promotion Grant itself, which
Howrey had not included in its presentation to the government. Roberts presented evidence that the Promotion Grant
may have been revised to correct a defect rather than to perpetrate a fraud. Roberts received his promotion on February 14,
2000, but, as the Personnel Action Form (“PAF”) for the promotion clearly shows, he did not receive any stock options on
that date. Instead, he received options as a reward for the promotion about five months later, on July 5, 2000, when
McAfee’s CFO and Davis jointly signed a new PAF granting
Roberts 20,000 options with an exercise price “as of 2-1400,” the date of the promotion. The stock had closed at $29.62
on February 14, and at $19.69 on July 5, which meant that the
ROBERTS v. MCAFEE
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options were deeply underwater when the company finally
issued them. At trial, a McAfee board member testified that
he had never seen the company issue a grant that was underwater when given. Roberts’ counsel also emphasized another
intriguing fact: the strike price as revised ($19.75) was actually higher than the stock price on the date the grant originally
issued ($19.69). So Roberts could have obtained an even
more favorable strike price by re-dating the Promotion Grant
as of the actual grant date.
The evidence at Roberts’ criminal trial also suggested that
Davis may have had authority to issue options on his own.
The Board had delegated to the CEO authority to issue option
grants of up to 15,000 shares in 1997, which would be “adjusted from time to time to reflect recapitalizations, stock
splits . . . or similar events.” The Board approved a 3-for-2
stock split in 1998, and Roberts argued that the split correspondingly increased the CEO’s option-granting authority by
a factor of 1.5, to 22,500 shares. The evidence also suggested
that the CEO may have delegated his authority to lower-level
executives, including Davis. Although there is no documentation of the delegation to lower-level executives, there are
some indications that it occurred in practice.
As Roberts’ counsel acknowledged, these arguments did
not definitively resolve every question about the Promotion
Grant. If Davis had the power to unilaterally grant options to
Roberts (or unilaterally re-price them), why did the Compensation Committee need to approve them? Why did Roberts
not disclose the revision to his Promotion Grant during the
investigation of Davis for stock options backdating two years
later? And why did Davis and Roberts think April 14, 2000,
was a more logical date for setting the strike price than the
date of Roberts’ promotion? April 14 may have been the day
after the first Compensation Committee meeting following the
promotion, but it also happened to be a day on which
McAfee’s stock price dropped sharply.
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Despite these lingering questions, the jury acquitted Roberts of two fraud charges, and was unable to reach a verdict
as to whether Roberts had deprived McAfee of “honest services,”2 and as to whether he had falsified books and records.
Prosecutors voluntarily dismissed the outstanding counts with
prejudice the day after the verdict issued. Several months
later, the SEC dismissed its civil case pursuant to a stipulation
in which Roberts waived any right to pursue attorney’s fees.
This lawsuit followed. Roberts asserts claims for malicious
prosecution, defamation, and false light invasion of privacy.
The district court denied in part and granted in part McAfee’s
motion to strike under the anti-SLAPP statute.3 Citing “disputed issues of fact regarding information provided by
McAfee to the government investigators,” it denied the
motion to strike Roberts’ malicious prosecution claims. But it
granted the motion to strike his defamation and false light
claims as time-barred.4
Jurisdiction and Standard of Review
The collateral order doctrine gives us jurisdiction to review
the district court’s denial of the anti-SLAPP motion to strike
After Skilling v. United States, 130 S. Ct. 2896 (2010), Roberts could
not be convicted on these honest services charges, because he was not
alleged to have engaged in bribery or kickbacks. United States v. Pelisamen, 641 F.3d 399, 402 (9th Cir. 2011) (“[Skilling] held that the offense
of honest-services fraud . . . is unconstitutionally vague when applied to
conduct other than bribery and kickbacks.”).
McAfee also moved to dismiss the claims under Fed. R. Civ. P.
12(b)(6), but this Court does not have jurisdiction to review the district
court’s disposition of that motion, Hilton v. Hallmark Cards, 599 F.3d
894, 902 (9th Cir. 2010) (holding that a motion to dismiss is not “inextricably intertwined,” for purposes of pendent jurisdiction, with a motion to
strike the same claim), and the parties do not ask the court to conduct such
The district court also struck these claims on the ground that the allegedly defamatory statement was one of opinion, not fact. Because we agree
that the claims are time-barred, we do not reach that issue.
ROBERTS v. MCAFEE
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Roberts’ malicious prosecution claims. Mindys Cosmetics,
Inc. v. Dakar, 611 F.3d 590, 595 (9th Cir. 2010). Because we
reverse that portion of the district court’s decision, its decision
to strike Roberts’ remaining claims—for defamation and false
light invasion of privacy—is a final order, which we have
jurisdiction to review pursuant to 28 U.S.C. § 1291.
We review de novo a district court decision on a motion to
strike under California’s anti-SLAPP statute. Mindys Cosmetics, 611 F.3d at 595. The anti-SLAPP statute requires a twopart analysis: (1) the defendant must make a prima facie
showing that the suit arises “from an act in furtherance of the
defendant’s rights of petition or free speech”; and (2) once the
defendant makes this showing, “the burden shifts to the plaintiff to demonstrate a probability of prevailing on the challenged claims.” Id. (quoting Vess v. Ciba-Geigy Corp. USA,
317 F.3d 1097, 1110 (9th Cir. 2003)). Roberts does not dispute that McAfee has made a prima facie showing on the first
prong; thus, the sole question presented is whether he has
demonstrated a “probability of prevailing” on his claims.
In the anti-SLAPP context, “probability” is a low bar. To
withstand an anti-SLAPP motion to strike in California,
the plaintiff must demonstrate that the complaint is
both legally sufficient and supported by a sufficient
prima facie showing of facts to sustain a favorable
judgment if the evidence submitted by the plaintiff
is credited. In deciding the question of potential
merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the
defendant; though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a
matter of law, the defendant’s evidence supporting
the motion defeats the plaintiff’s attempt to establish
evidentiary support for the claim.
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ROBERTS v. MCAFEE
Manufactured Home Communities, Inc. v. Cnty. of San Diego,
2011 WL 3771277, at *4 (9th Cir. Aug. 26, 2011) (internal
alterations and quotation marks omitted). The plaintiff’s burden resembles the burden he would have in fending off a
motion for summary judgment or directed verdict. Gilbert v.
Sykes, 53 Cal. Rptr.3d 752, 763 (Ct. App. 2007); see also
Mindys Cosmetics, 611 F.3d at 599.
Malicious Prosecution Claims
 To succeed on a malicious prosecution claim under
California law, a plaintiff must prove that the prior action:
“(1) was commenced by or at the direction of the defendant
and was pursued to a legal termination in his, plaintiff’s,
favor; (2) was brought without probable cause; and (3) was
initiated with malice.” Paiva v. Nichols, 85 Cal. Rptr. 3d 838,
848 (Ct. App. 2008) (quoting Bertero v. Nat’l Gen. Corp., 529
P.2d 608, 613-14 (Cal. 1974)). We conclude that Roberts cannot meet his burden on the second element; thus, we do not
reach the first or third elements.
 Probable cause for the initiation of a criminal prosecution exists where “it was objectively reasonable for the defendant to suspect the plaintiff had committed a crime.” Conrad
v. United States, 447 F.3d 760, 768 (9th Cir. 2006) (alterations omitted) (quoting Ecker v. Raging Waters Group, Inc.,
105 Cal. Rptr. 2d 320, 326 (Ct. App. 2001)). Whether probable cause existed on the facts known to the defendant is a
question of law for the court. Sheldon Appel Co. v. Albert &
Oliker, 765 P.2d 498, 503-04 (Cal. 1989). What facts the
defendant knew is an issue of fact for the jury, but only to the
extent the scope of the defendant’s knowledge is disputed. Id.
In this case, although many facts are disputed, several key
facts are not. Those undisputed facts establish that McAfee
had probable cause to accuse Roberts of participating in the
illegal backdating of three stock option grants — the Promotion Grant, the Samenuk Grant, and the Matin Grant —
ROBERTS v. MCAFEE
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regardless of whether McAfee or its agents misrepresented
evidence to government investigators.
The Promotion Grant
 Assuming, as we must at this stage, that Roberts’
sworn allegations are correct, McAfee falsified and withheld
evidence to make his culpability seem clearer than it really
was. According to Roberts, McAfee or its agents said that he
had confessed when he had not, and offered an incomplete
picture of the Promotion Grant to exaggerate the degree of
suspicion created by his conduct. If Roberts is right, McAfee
behaved inexcusably. But, under California law, lying about
the facts is not enough to destroy probable cause. In Sheldon
Appel, the California Supreme Court held that, so long as the
evidence known to the defendant could support an objectively
reasonable suspicion — regardless of whether the defendant
actually possessed such a suspicion — the defendant is not
liable for malicious prosecution. Sheldon Appel, 765 P.2d at
506-07. By that same reasoning, a defendant who fabricates
evidence still acts with probable cause if the defendant is
aware of other evidence which would make it objectively reasonable to suspect the plaintiff’s guilt. See Sangster v. Paetkau, 80 Cal. Rptr. 2d 66, 76-77 (Ct. App. 1998) (despite
evidence that defendant had leveled false accusations at plaintiff in a fraud complaint, defendant acted with probable cause
because she possessed other, unfabricated evidence that plaintiff had defrauded her) (“If undisputed facts in the record do
establish an objectively reasonable basis for bringing the
underlying action, the existence of other, allegedly disputed
facts is immaterial”); see also McSherry v. City of Long
Beach, 584 F.3d 1129, 1142 (9th Cir. 2009) (in federal malicious prosecution action against police officers, evidence that
officers had fabricated a child rape victim’s description of the
accused’s home did not show a lack of probable cause
because other evidence, including the victim’s positive identifications of the accused, established an objectively reasonable
basis for suspicion).
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To be sure, McAfee would lack probable cause had it fabricated the entire predicate for its claim. See Sierra Club
Found. v. Graham, 85 Cal. Rptr. 2d 726, 737 (Ct. App. 1999)
(“A litigant will lack probable cause for his action . . . if he
relies upon facts which he has no reasonable cause to believe
to be true . . . .”) (internal quotation marks omitted). But that
is because, in such a case, the defendant would know of no
facts that could provide reason to suspect the plaintiff of
wrongdoing. See id. (“[I]f defendant knows that the facts he
or she is asserting are not true, then defendant’s knowledge of
facts which would justify initiating suit is zero, and probable
cause is nonexistent.”); see also Sheldon Appel, 765 P.2d at
506 (“[T]he probable cause element calls on the trial court to
make an objective determination of the ‘reasonableness’ of
the defendant’s conduct, i.e., to determine whether, on the
basis of the facts known to the defendant, the institution of the
prior action was legally tenable.”).
 Here, by contrast, even if McAfee misrepresented certain aspects of the Promotion Grant to make Roberts look
worse, it was also aware of other facts that, on their own, provided objectively reasonable suspicion that Roberts had committed a crime. McAfee knew that, in May 2006, Roberts had
told McAfee’s CEO and two directors that he and Davis had
reduced the strike price on the Promotion Grant months after
the grant issued. McAfee also knew that Davis had been convicted of fraud three years after the revision; that McAfee had
investigated Davis for issuing and repricing options without
authorization; that Roberts had led McAfee’s investigation of
Davis’ conduct; and that Roberts still failed to report the
change to the Promotion Grant until about four years after that
investigation, when the SEC announced a new investigation
into McAfee’s options practices in mid-2006. While these
facts are far from conclusive of Roberts’ culpability, they at
least gave McAfee reason to suspect that Davis lacked the
authority to revise the grant, that he and Roberts changed the
grant just to make it more lucrative, and that the criminality
of the act caused Roberts to keep mum about it during the
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Davis investigation. While Roberts was eventually successful
in beating back the criminal and civil enforcement actions
against him, the ultimate failure of a lawsuit does not mean
there was no probable cause to bring it. See Sheldon Appel,
765 P.2d at 511.
 Indeed, even the facts as known today do not immediately suggest a compelling explanation for why Roberts
thought it appropriate for the Controller to lower by one-third
the strike price of options that had already been ratified by the
Compensation Committee. The facts upon which Roberts won
acquittal may give rise to reasonable doubt, but they do not
destroy reasonable suspicion.5
The Samenuk and Matin Grants
 McAfee also had reason to suspect Roberts of wrongdoing in connection with the Samenuk and Matin grants. Roberts’ own emails suggested he had made a unilateral decision
to lower the exercise price for the Samenuk Grant after the
Compensation Committee approved it. On January 15, the day
of the Committee meeting, Roberts wrote an email to other
executives explaining that the Committee had approved the
grant “as of January 15, 2002 at $27.19.” The next day, when
the share price dropped, he wrote in another email, “Let’s
price the 420,000 option shares at today’s closing price of
$25.43.” True, the meeting minutes that Roberts prepared
reflected that the grant was to be priced as of the 16th, not the
15th, and one Committee member who testified could not say
that the minutes had been falsified. But these facts do not
defeat probable cause. The discrepancy between Roberts’ two
That makes Roberts’ citation to Zamos v. Stroud, 87 P.3d 802 (Cal.
2004), inapposite. While a prosecution initiated with probable cause may
become malicious if the instigating party fails to terminate the action upon
learning facts that extinguish any reasonable suspicion, id. at 803, McAfee
never learned such game-changing facts about Roberts’ involvement in
backdating the Promotion Grant.
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emails would justify reasonable suspicion that he revised the
price unilaterally and later conformed the meeting minutes to
In addition, under California law, the indictment itself created a prima facie presumption “that probable cause existed
for the underlying prosecution.” Conrad, 447 F.3d at 768.
Although the presumption may be rebutted if the indictment
was based on false evidence, Williams v. Hartford Ins. Co.,
195 Cal. Rptr. 448, 452 (Ct. App. 1983), Roberts has never
suggested that that is what happened here. Howrey disclosed
the meeting minutes along with Roberts’ emails in its presentation. On the basis of that evidence, prosecutors made an
independent decision to charge him for improperly backdating
the Samenuk Grant, and that charging decision created a presumption of probable cause that Roberts has not rebutted.
 There was likewise probable cause of wrongdoing with
respect to the Matin Grant. The SEC alleged that Roberts
signed proxy statements that he knew, or should have known,
failed to disclose that the grant had been backdated to a date
before Matin began working at McAfee. Roberts clearly knew
about the backdating; his notes from the committee meeting
authorizing the grant say “Art Matin, Backdating of options.”
And Roberts does not deny that he signed the misleading
proxy statements. His only complaint is that Howrey’s presentation omitted a page of Roberts’ notes reflecting that the
Compensation Committee had approved the backdating. But
the SEC never alleged that the grant lacked formal approval
— just that Roberts signed off on misleading documents
about when Matin began working at McAfee. The evidence
suggests that this is exactly what he did.
 Because McAfee had reason to suspect that Roberts
participated in wrongfully backdating the Promotion Grant,
the Samenuk Grant, and the Matin Grant, McAfee’s motion
to strike the malicious prosecution claims should have been
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Defamation and False Light Claims
Roberts’ defamation and false light claims stem from the
press release McAfee posted on its website on May 30, 2006,
which asserted that Roberts had acted “improper[ly]” in connection with stock options. The press release remained up on
McAfee’s website as late as November 2009. Because Roberts did not file suit until September 16, 2009, more than three
years after the press release was first posted, the district court
struck the claims as time-barred under the applicable one-year
statute of limitations, Cal. Code Civ. P. § 340(c). We agree.
 California Civil Code § 3425.3 sets forth a “singlepublication” rule that governs the statute of limitations analysis where a statement made in a mass communication forms
the basis of a tort action:
No person shall have more than one cause of action
for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one
issue of a newspaper or book or magazine or any one
presentation to an audience or any one broadcast
over radio or television or any one exhibition of a
motion picture. Recovery in any action shall include
all damages for any such tort suffered by the plaintiff
in all jurisdictions.
Cal. Civ. Code § 3425.3 (West 1997). The single-publication
rule limits tort claims premised on mass communications to
a single cause of action that accrues upon the first publication
of the communication, thereby “spar[ing] the courts from litigation of stale claims” where an offending book or magazine
is resold years later. Christoff v. Nestle USA, Inc., 213 P.3d
132, 138 (Cal. 2009) (quoting Gregoire v. G.P. Putnam Sons,
81 N.E.2d 45, 48 (N.Y. 1948)). The rule applies to false light,
as well as to defamation claims. Id. at 137; see Fellows v.
Nat’l Enquirer, Inc., 721 P.2d 97, 104 (Cal. 1986) (citing
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Fouts v. Fawcett Publ’ns, 116 F. Supp. 535, 537 (D. Conn.
1953)). And, as Roberts concedes, the rule encompasses statements published on internet websites. Although the California
Supreme Court has not addressed the issue, the California
Courts of Appeal have uniformly applied the rule to websites.
See Traditional Cat Ass’n, Inc. v. Gilbreath, 13 Cal. Rptr. 3d
353, 355 (Ct. App. 2004) (“[T]he single-publication rule
applies to statements published on Internet Web sites.”); id. at
362 (“[W]e have very little doubt that . . . our Supreme Court
would find that . . . interests [in free expression] require application of the single-publication rule to Web-page publication.”); Long v. Walt Disney Co., 10 Cal. Rptr. 3d 836, 838,
840-41 (Ct. App. 2004); Ibarra v. Carpinello, 2011 WL
925719, at *9 (Cal. Ct. App. 2011) (unpublished)
(“Defendants’ publication on the Internet, no matter how long
it remained available thereafter, is deemed a single publication as of the date it was first posted.”); Taylor v. Kuwatch,
2004 WL 1463046, at *1 (Cal. Ct. App. 2004) (unpublished)
(“The uniform single publication rule . . . applies to publication on the Internet.”); see also Lockton v. Small, 2005 WL
357890, at *20 (Cal. Ct. App. 2005) (unpublished) (describing
as “persuasive” decisions from other states that hold that “the
single publication rule applies to the Internet and that the first
posting establishes the publication date.”);6 Oja v. U.S. Army
Corps of Eng’rs, 440 F.3d 1122, 1133 (9th Cir. 2006) (applying common-law single-publication rule to internet publications).
 Information is generally considered “published”
within the meaning of the single-publication rule when it is
first made available to the public, Traditional Cat Ass’n, 13
Cal. Rptr. 3d at 359; that happened here when McAfee first
Even though unpublished California Courts of Appeal decisions have
no precedential value under California law, the Ninth Circuit is “not precluded” from considering such decisions “as a possible reflection of California law.” Employers Ins. of Wausau v. Granite State Ins. Co., 330 F.3d
1214, 1220 n.8 (9th Cir. 2003).
ROBERTS v. MCAFEE
Page: 18 of 22
posted the press release on its website in 2006. Roberts
acknowledges, as he must, that any claim based on that initial
publication is time-barred. But he contends McAfee’s failure
to take down the press release “once it received substantial
indications of falsity” amounted to a republication, restarting
the limitations period and keeping his defamation and false
light claims alive.7
 We are not persuaded that Roberts’ argument correctly foretells California law. He cites no case that actually
espouses the theory, and other courts have rightly rejected
similar theories. See D.A.R.E. America v. Rolling Stone Magazine, 101 F. Supp. 2d 1270, 1287 (C.D. Cal. 2000) (“There
is no authority to support Plaintiffs’ argument that a publisher
may be liable for defamation because it fails to retract a statement upon which grave doubt is cast after publication.”);
Lockton, 2005 WL 357890, at *21 (“[W]e fail to see the connection between a refusal to retract and the expectation of
republication.”); see also Coughlin v. Westinghouse Broad. &
Cable, Inc., 689 F. Supp. 483, 488 (E.D. Pa. 1988) (“Counsel
have not been able to come up with any case in any American
jurisdiction which recognizes a claim sounding in damages
for failure to retract what is defamatory.”).
 The fundamental problem with Roberts’ theory —
that a mass communication is republished when the defendant
fails to retract it after receiving notice of its falsity — is that
it undermines the single-publication rule. That rule is
designed to provide repose to defendants by precluding stale
claims based on dated but still-lingering mass communications. See Traditional Cat Ass’n, 13 Cal. Rptr. 3d at 358-59.
But if we were to adopt Roberts’ position, repose would never
Roberts mentions in passing that this failure happened in “the context
of an otherwise evolving website” but does not argue that the evolution
amounted to a republication. Accordingly, we need not decide the circumstances in which alterations to a webpage might be so extensive as to constitute a republication of that webpage.
Page: 19 of 22
ROBERTS v. MCAFEE
be certain. A newspaper article published forty years ago
whose veracity is called into question today could subject the
publisher to a defamation suit. Such a result would be entirely
at odds with the goal of the single-publication rule. See Christoff, 213 P.3d at 138.
Roberts fails to address this problem. Instead, he cites inapposite authorities concerning a property-owner’s liability for
defamatory matter published on her property by a third party.
See Hellar v. Bianco, 244 P.2d 757 (Cal. Ct. App. 1952)
(holding that the proprietor of a public venue, such as a tavern, becomes liable for defamation if she learns that a third
party has written a defamatory statement on the venue’s walls
and fails to remove it); Barnes v. Yahoo! Inc., 570 F.3d 1096,
1103 (9th Cir. 2009) (defamation sometimes imposes an “affirmative duty to remove a publication made by another”);
Tacket v. Gen. Motors Corp., 836 F.2d 1042, 1046 (7th Cir.
1987) (“Failing to remove a libel from your building, after
notice and opportunity to do so, [can form a basis for liability].”); Restatement (Second) of Torts § 577(2) (1977) (explicating the rule set forth in Hellar). None of these authorities
addresses the definition of republication; indeed, none
addresses the single-publication rule at all.
Roberts’ reliance on Justice Werdegar’s concurrence in
Christoff is also misplaced, even assuming that it is a reliable
guidepost on how the California Supreme Court would rule.
The issue in Christoff was whether the defendant’s continued
issuance of tortious material (coffee-can labels bearing an
unauthorized image of the plaintiff) was subject to the singlepublication rule and, if so, how that rule applied. Christoff,
213 P.3d at 133. The majority remanded on the issue of
whether Nestle’s continued production of substantially identical coffee-can labels for several years was a single integrated
publication. In a concurrence, Justice Werdegar attempted to
provide guidance on what might count as republication in
ROBERTS v. MCAFEE
Page: 20 of 22
Neither the majority opinion nor Justice Werdegar’s concurrence said anything about whether a company’s inaction
— its failure to retract a publication — could amount to a
republication. And, while Justice Werdegar’s concurrence
was not adopted by the majority and therefore is not the law
of California, even if it were, it would not help Roberts. In her
concurrence, Justice Werdegar suggested that, “where a publication has been out of print or unavailable in digital form for
some time and the publisher makes a conscious decision to
reissue it or again make it available for download,” a republication has occurred. Id. at 143 (Werdegar, J., concurring).
Roberts does not allege that McAfee took either step here. It
did not issue an altered version of the press release on its website, or even reissue the press release itself in identical form.
Instead, as Roberts concedes, all it did after May 2006 was to
continue to host the press release on its website. That kind of
inaction is not a republication. See Oja, 440 F.3d at 1132
(hosting “concerns technical maintenance rather than the particularized and original effort involved in publishing information to an audience”); Christoff, 213 P.3d at 143 (Werdegar,
J., concurring) (“Where the publisher has set up a more or less
automated system for printing and distributing an item or for
downloading it in digital form and does not make a separate
publishing decision as to each copy or small batch of copies,
to call each such distribution a new ‘issue’ of the material
would defeat the purposes of the single publication rule.”);
see also Traditional Cat Ass’n, 13 Cal. Rptr. 3d at 362
(“[T]he need to protect Web publishers from almost perpetual
liability for statements they make available to the hundreds of
millions of people who have access to the Internet is greater
even than the need to protect the publishers of conventional
hard copy newspapers, magazines and books.”).
Roberts contends that, at the very least, the district court
should have allowed him to take discovery, pursuant to Rule
56(d) of the Federal Rules of Civil Procedure,8 concerning
Roberts’ motion for discovery was brought pursuant to Rule 56(f),
which has since been relocated to Rule 56(d).
Page: 21 of 22
ROBERTS v. MCAFEE
McAfee’s alleged “republication of the defamatory press
release.” But this rule requires discovery only “where the nonmoving party has not had the opportunity to discover information that is essential to its opposition.” Metabolife Int’l, Inc.
v. Wornick, 264 F.3d 832, 846 (9th Cir. 2001) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5
(1986)). Roberts’ motion sought discovery into “McAfee’s
awareness of the falsity of the press release and the decision
to maintain it on the company’s publicly available website
following Roberts’[ ] acquittal.” Such evidence was not
essential to Roberts’ opposition; it would not affect the statute
of limitations analysis under California’s single- publication
rule. The district court therefore acted well within its discretion in denying the motion. See Getz v. Boeing Co., 654 F.3d
852, 868 (9th Cir. 2011) (affirming under abuse-of-discretion
standard the denial of a Rule 56(f) discovery motion where
the party “failed to ‘proffer sufficient facts to show that the
evidence sought exist[ed], and that it would [have] prevent[ed] summary judgment.’ ” (quoting Blough v. Holland
Realty, Inc., 574 F.3d 1084, 1091 n.5 (9th Cir. 2009))).
 Because Roberts’ defamation and false light claims
were not brought within one year of the initial publication of
the press release, they are time-barred, and the district court
rightly struck them.
 For the reasons set forth above, we affirm the district
court’s order granting McAfee’s anti-SLAPP motion to strike
Roberts’ claims for defamation and false light invasion of privacy, but reverse its order denying McAfee’s anti-SLAPP
motion to strike Roberts’ malicious prosecution claims and
remand to the district court with directions to enter judgment
dismissing Roberts’ action. Costs on appeal are awarded to
In No. 10-15670, the order of the district court is
ROBERTS v. MCAFEE
Page: 22 of 22
In No. 10-15561, the order of the district court is
REVERSED and REMANDED.
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